Capital Punishment

Reiman: "Justice, Civilization, and the Death Penalty": overview

(Important: assumes no deterrence exists, otherwise supports DP) (1) DP is a just punishment for murder, and the V/society have a right to kill murderers (2) Still, they shouldn't exercise that right—DP abolition is part of the civilizing mission of modern states, and may help to deter. Instead, we should use proportional retributivism, which is enough to satisfy lex talionis (offender deserves injury equivalent to that he imposed).

HEIGHTENED RELIABILITY: N&B 5-7

1. Beck + Gardner not that important; but Caldwell + Simmons are. Gardner. (i) Rarely does PSI contain something that would really tip the scales (ii) Judges aren't really sentencing for DP anymore post-Hurst (2016). Beck. The law at issue was such an outlier that impact very limited. Caldwell. These challenges are very common bc tempting for prosecution to respond to D counsel appealing to jury's emotions saying "bird is in your hands" by trying to relieve their feeling of stress/responsibility of imposing DP. Simmons. Still important bc (i) many not sure whether LWOP allows parole. As SCOTUS creates these procedural requirements for CP, important to ask if these would be procedural requirements you'd prioritize. Nope. This is what you'd want:(1) Improve the lawyering (they have, to some extent; Steiker + any judge's top choice) (2) better protections for AI (no special protections for DP exist) (3) controlling elected judges (actual lawyers will say this is major issue, especially in deep south! Only way to deal w/this is more federal habeas!) i. NOTE: SCOTUS doesn't value them that much The same things cause unreliability in DP over and over again and possible USC responses: 1. Capital trials more prone to these errors b/c of: (1) dead V (2) pressure to convict (3) people who really did it have strong incentive to fabricate evidence. ii. Mistaken ID. (a) People not good at identifying (especially cross-racially) (b) confidence and accuracy not well correlated a. Possible USC response: Maybe DPC limits on ID procedures (some states do this). iii. False confessions. These are often juveniles, mentally ill, cognitive disability, and others subject to manipulation. iv. Jailhouse informants. We should be suspicious because they have incentive to curry favor. v. Prosecutorial suppression of exculpatory evidence a. Possible USC response: under Brady v. Maryland (1963), required to hand over materially exculpatory evidence vi. Bad Forensic Evidence vii. Bad Lawyering a. Possible USC response: IAC (6A) But there's not too much the USC can do. It's really for legislators—and they have done some things. Following Illinois's 2003 mass clemency for DR, the state created a blue-ribbon commission to make reforms. One reform: videotaped confessions, introduced by young state senator Barack Obama.The best solutions will be multifaceted. For example, NC created statewide innocence commission (separate forum from traditional judicial system) to deal with Herrera-type claims.

Payne Souter concurrence

1. Details about V are relevant to D's crime bc THE HARM IS FORESEEABLE, even if D didn't know exact details of V's life. Murder has foreseeable consequences (you know the person will die and leave survivors behind). 2. Without allowing VIE in, courts can't give crime's consequences moral relevance and risk tipping balance too far in D's favor.

Harmelin stevens disesnt

1. Mandatory LWOP for drug smuggling is disproportionate bc D's conduct isn't so atrocious that interest in deterrence + retribution wholly outweighs rehabilitation of D. Bc LWOP doesn't ever allow D to go free, there can be no rehabilitative justification for imposing the punishment. Serious as D's crime was, it is irrational to conclude that every similar offender is wholly incorrigible. 2. This is arbitrary as a lightning strike just as DP was arbitrary (using Stewart's language from Furman!) a. Under any other law (FG or other states), D would have received a much lower sentence. He just happened to get a high one bc he was in Michigan.

ABA Guidelines:

1. Need to investigate even if client is unhelpful 2. Need a mitigation expert 3. 10.5 -- need a relationship with the client 4. Need to hire a psychological expert -- should get an independent, non-state expert

Obstacles to Habeas Relief

1. Procedural default 2. Successive + abusive petitions for writ 3. Non-Retroactivity: 4. Statute of Limitations 5. Standard of review 6. Cognizable Claims 7. Evidentiary Hearing

Godfrey: White dissent

1. Regardless of how broadly jury construed b7, facts of this case bear sufficient relation to b7—this was in fact wantonly vile—to conclude GA SCT responsibly and constitutionally discharged its review function. Points to the murder scene, which was very gruesome (shotgun to head). 2. SCOTUS's role is to correct genuine errors of constitutional significance resulting from application of GA's statute, not to second-guess SCT's interpretation of the facts. a. "Our role is not to peer majestically over the lower court's shoulder so that we might second-guess its interpretation of facts that quite reasonably—perhaps even quietly plainly—fit within the statutory language."

Penry Scalia dissent

1. This doesn't follow our precedents. Jurek, Lockett and Eddings only stand for proposition that ME can't be excluded wholly from consideration—they don't say that the law can't dictate how sentencers weigh that evidence. 2. This will lead to Furman arbitrariness. Guiding jury's application of MFs is more consistent with reducing arbitrariness and preventing emotional decisions in DP cases.

Pinholster Alito concurrence

1. This gives § 2254(e)(2) an implausibly narrow scope. 2254(e)(2) is already really narrow.

Eddings Majority (Powell)

1. Unconstitutional for judge to refuse to consider relevant ME. (a) In same way that statute can't preclude sentencer from considering MFs (Lockett), sentencer can't refuse, AMOL, to consider relevant ME (again, relevant = D's character, D's background, and circumstances of the crime) (b) sentencer can determine weight to be given the evidence, but she can't assign the evidence NO weight. 2. NOTE: limited value though bc can assign .0000001 weight.

Gregg: Brennan dissent

DP is per se C+U—this was the essence of Furman. It wasn't about inadequacy of the procedures. NOTE: he then repeats the arguments in his Furman opinion.

EFFECTIVE COUNSEL 3 generations

First Generation Cases (Strickland (1984), Burger (1987)). The Strickland test was being applied in a toothless way, as evinced by Burger. 2. Second Generation Cases ("The ABA Trifecta") (Williams v. Taylor (2000), Wiggins v. Smith (2003), Rompilla v. Beard (2005)). New Features. Claims to be applying Strickland, but it's like a new standard. i. Performance. ABA standards de facto incorporated as a checklist and uses local standards too. ii. Prejudice: You just need to show that 1 juror would've changed their sentence from DP to LWOP. Court becomes much more discerning of counsel. (a) Development of a more sophisticated bar —> better standards of practice/professional norms (b) Kennedy, Souter, and O'Connor began moving towards the middle on this issue. i. Illustration. Lawyers that lost in Wiggins are much more competent than lawyers that lost in Burger and Strickland. The results in these cases are stunning, especially bc happened post-AEDPA (1996). Fueled by O'Connor's interpretation of her own cases. 3. Third Generation Cases (Bobby v. Van Hook (2009), Porter v. McCollum (2009), Wong v. Belmontes (2009)) a. New Features i. Performance. (i) Retreats/cast doubt on ABA —you must show that ABA provisions were prevailing practice, and it has to be (ii) at the time of trial. 1. NOTE: In Van Hook they say ABA inapposite bc case was from 18 years earlier; standards indeed had drastically changed during that time thanks to active NGOs, including those of Stephen Bright and Kristen Nelson, that functionally became de facto public defenders. ii. Prejudice. If you say good ME was excluded, you have to also consider what bad evidence that would open the door to (Belmontes) 1. NOTE: Now every time Court doing IAC analysis, counsel can defend herself by saying this would've made D seem more dangerous! b. Background. (1) 2005: O'Connor retires, is replaced by Alito, who is now the big player (2) no explicit overruling of Second Generation Cases (3) D in Porter wins, so it's not all bad for Ds.

Racial Justice Acts: NC

North Carolina (2009) (most powerful of the three; almost created DP moratorium in state)D has to state with particularity how racism has prevailed in local Jx. This particularity requirement isn't like KY's —>more general to the area. Similar to Federal statute in that it's burden-shifting statute.Allowed for discrimination to be proved by statistical evidence. Of race of D, race of V, or racially motivated peremptories. i. Statistics could be proven by county, prosecutorial district, judicial division, or entire State. Gutted in 2012 by Republicans after it ground executions to a halt, now no longer useful. No longer allowed race of V evidence + statistics cannot be used to prove bias.

EFFECTIVE COUNSEL N&B 6-9

On IAC claim, you have a new evidentiary hearing to consider what good lawyer would've done. Appellate courts can't take in evidence, so we're back in TC. What deficient features would not be captured by the cold record? (a) Unasked questions at cross-examination. Time has gone by and now they know what you're asking about—you can't recreate it (b) a failure to properly object (c) things like fervency + other demeanor-based actions. What is prevailing practice? (1) Unclear WHERE. Seems like where you were trained, but how about those trained in AL (like Brandon Washington's atty)? (2) unclear whether these norms should be descriptive or normative. How to ensure adequate legal counsel. Our class looks at it constitutionally, but other levers too.More funding for: (1) Public defender services (majority of DP states don't have statewide public defender) (2) Expert services in psychology, abuse, etc (even DNA + ballistics at thee guilt phase) (3) so counsel can spend more time with family—sometimes it takes long time to build needed trust to share sensitive family info. Structure. Currently: (1) Sometimes court appointed, but that means the counsel is dependent on judge for livelihood and thus little independence/might not put forth motions or actions you know will annoy judge. (2) Sometimes they contract to lowest bidder.Discipline. (1) ABA is the largest bar association (2) States have their own qualification.

Kansas v. Marsh (2006) OI

Overview: (1) As long as juries are allowed to consider all relevant ME, states are allowed to require DP when AFs and MFs are equally balanced. (2) Scalia concurrence: No one has proved that innocent person has ever been executed. The fact that people who have been sentenced to death have been exonerated does not show that the system is broken—rather, it shows that it works. (3) Souter has a mini-Blackmun moment of saying we should have a preference against DP given evidence that innocents are being sentenced to death. Issue: KS statute = if there's equal balance between MFs and AFs, then jury must impose DP. Is this OK? NOTE: Claim has nothing to do with innocence.

Graham v. Florida (2010) OI

Overview: (1) JLWOP disproportionate for juveniles who committed non-homicide crimes (2) T1 applies to "categorical rules" and T2 for non-categorically asking whether punishment appropriate for individual D.

Lockett v. Ohio (1978) o&i

Overview: Closed list of MFs is unconstitutional—8A requires individualized sentencing, requiring sentencer to be permitted to consider D's character, D's background, and the circumstances of crime. Issue 1. Young woman getaway driver got DP under FM statute even though didn't participate in crime and wasn't even inside the building (even though murderer himself didn't get it (b/c he testified for the prosecution)). 2. Does Ohio's narrow, closed list of MFs—(a) V induced or facilitated the murder (b) duress (c) psychosis or mental deficiency—violate 8A's individualized sentencing requirements? a. NOTE: statute doesn't allow for consideration of age.

David Faigman, "The Supreme Court's Confused Empirical Jurisprudence," CrimLaw Reporter (2015)

Overview: Court lacks a coherent empirical jurisprudence. Judges should become well-versed in experimental and statistical technique. Problem arises when reasoning from group data to individuals. There are two different kinds of facts, legislative facts and adjudicative facts. (a) legislative facts: general in nature and are relevant to how rules of law are defined (i.e. does Benzene cause leukemia?) (b) adjudicative facts: case-specific, ordinary fact-finding of TCs (did Benzene cause the plaintiff's leukemia? Did the pedestrian look both ways?) The two need different standards of review. Legislative facts must be reviewed de novo—if reviewed under clearly erroneous standard, SCOTUS might find itself in the very weird position of having one lower court say "this DP drug isn't C+U bc it works" and the other say "this same DP is C+U bc it does not work" and have to uphold both factual findings.

Obstacles to habeas relief: procedural default

Pre ADEPA: 1. Procedural default (Noia—> Sykes): 2 ways out: (a) Cause + Prejudice (Sykes) (b) FMJ (Sawyer) Post: Same as before (all of this was non-statutory except FMJ, which comes from "ends of justice" in 2244 of the old statute about successive petitions. Though that changed, this lived on).

Obstacles to habeas relief: Standard of review

Pre: 5. Standard of review: Brown v. Allen: deference for facts, de novo for mixed questions and questions of law Post: § 2254 controls now, deferential now (really makes a difference)

Harmelin v. Michigan (1991)

TW: (1) Creates T2 proportionality test for non-DP punishments, saying strict proportionality not needed, but shouldn't be "grossly disproportionate" (2) Rules that mandatory LWOP for smuggling drugs not C+U bc of severe effects drugs have on society. Issue 1. D, a first time offender, was sentenced to mandatory LWOP after smuggling 672 grams of cocaine. Is this C+U disproportionate? a. NOTE: MI only state where this punishment would be remotely so severe. 2. NOTE: Court here trying to reconcile 3 of its decisions about C+U challenges to non-DP punishments. a. Rummel v. Estelle (1950): 3-strikes rule giving automatic LWP (not LWOP) for non-violent offenders NOT disproportionate (in that case, all D did was write 3 bad checks). i. Dissent (Powell) comes up with 3-part proportionality test: 1. Gravity of offense relative to severity of penalty 2. Penalties imposed within same Jx for similar crimes 3. Penalties imposed in other Jx for same offense b. Hutto v. Davis (1982): 40 years mandatory for marijuana possession NOT disproportionate. c. Solem v. Helm (1983): LWOP for 7 low level, non-violent felonies IS disproportionate. Powell gets to make his 3-part test the law.

Martinez Scalia dissent

This will have dramatic consequences.Given incentives at play, majority's decision has practical effect of creating a right to counsel in initial review collateral proceedings. This right will likely be applied to any claim where initial state habeas is the first real opportunity for a claim to be raised (i.e. he predicts Trevino, although there have been no other expansions). Now everyone will make IAC claim against trial atty in C2 and IAC claim against C2 atty in C3. This decision violates stare decisis. Coleman established categorical rule that attorney error doesn't constitute cause for default unless the state has constitutional obligation to provide effective counsel. So this is just a random exception! Majority never addresses federalism concerns. Hurts states for the all the typical reasons we don't like an expansion of state habeas.

VDH: Nathanson

Unequal justice is better than equal justice. It is unjust that some people escape DP—the Vs of those crimes! Guilt is personal/individual. We should try get rid of arbitrariness, not DP The choice of who dies isn't meaningfully arbitrary. Given extensiveness of proceedings it is clear that those people that are executed were bad enough to deserve death, even if they weren't necessarily the worst offenders. Even if we can survive without DP, doesn't mean it's not worth keeping. It may make society so much better off!

McGuatha: douglas dissent

Unitary trials create unconstitutional tension between 5A right to be free from self-incrimination and 14A procedural right to be heard in support of mitigating punishment. Not segmenting the guilt and punishment phases discourages D from bringing in all the facts with regards to mitigation for fear that they will negatively affect his chances in the guilt determination.

Federal Habeas: AEDPA Section 2244 (governs trying to get into C3)

You can't bring a claim in federal habeas if you've already brought the claim in federal habeas. It will be dismissed. (2244(b)(1)). You can't bring a claim if you failed to raise it in a previous federal habeas petition unless (2244(b)(2)) it (1) relies upon a new rule made retroactive on habeas OR (2) relies on new facts not discoverable before that, if true, show by clear and convincing evidence that no reasonable jury could find D guilty. You can't bring a claim if you've let the federal habeas SOL run (2244(d)). This is one year unless state has accelerated schedule; the clock starts when C2 ends. (NOTE: but you can likely overcome this with FMJ showing of AI) You can't bring a claim in federal habeas unless the AG or appropriate deputy is served with notice of the petition (2252). You can't appeal federal habeas claim to a circuit court unless a circuit judge grants a certificate of appealability (2253(c)(1)).

Reiman 3-4

(2) But we should not exercise this right — (a) it makes us uncivilized, (b) social conditions are largely to blame for crime, and (c) we shouldn't presume DP deters. a. (His main pt) DP is just, but not civilized. We don't rape rapists, or torture torturers, even though it would be just—there are compelling reasons not to, and those reasons apply to DP. 1. Is DP so horrible to be compared with torture? Yes. a. Death by itself = not bad. We kill people in war, we risk killing innocents all the time. b. But DP = subjugation + foreseen death, which is too horrible for civilized society. (1) It's not just physical pain, but the psychological pain of being subjugated by another (like slavery) (2) hardness of heart required for us to inflict it is what creates costs for our civilization. DP, like torture, demonstrates an inability or a refusal to empathize with the suffering of another. 2. Thus, by publicly refusing to do horrible things to other people we continue the work of civilizing. Relevant empirical evidence is Durkheim study that shows societies become less punitive as they advance, and punitiveness is tied with autocratic regimes. 3. To morally prove something is part of the mission of civilizing, we must show it is a net good or absolute good. (1) Banning CP reduces total pain in society = good (2) as long as it's not proven to be an effective deterrent, there no harm in banning it. b. Social conditions are to blame for crime. We as society have no right to execute murders so long as we do nothing to rectify social conditions (poverty) that produce their crimes. c. Response to those who say we should presume DP deters bc that seems intuitive. (1) LWOP probably deters enough—hard to say DP has large marginal deterrent value (2) people committing murder are already putting themselves at risk of death bc crime is dangerous, and they know that (3) people don't care about theoretical/statistical death (seatbelts) (4) banning DP can also deter, showing death is so bad the state not willing to do it (5) slippery slope: if deterrence is a good enough reason, why don't we use torture? (4) Proportional retributivism is enough to honor lex talionis. (1) Locates punishment at the meeting point of the offender's just deserts and society's moral scruples—LWOP plays this role well (2) only fails when punishment is so out of proportion to the crime that the punishment trivializes the crime.

Racial Justice Acts: KY

(least powerful bc has to show in his trial) (a) Not a burden-shifting statute (no rebuttal) (b) burden on D to show statistics that race was a significant factor in DP at time of sentencing + particularized evidence that racial discrimination played part in D's trial (NOTE: no one has ever proved a case of discrimination under this scheme).

Furman: Stewart

1. DP C+U as applied bc it's effectively random and arbitrary. There's no rhyme or reason to its application. a. "These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual ... I simply conclude that [the USC] cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed."

Furman: White concurrence

1. DP C+U as applied bc it's pointless. It's cruel bc it is used too rarely to promote either retribution or deterrence. NOTE: almost like he's saying we should execute more people!

Lockett Plurality (Burger)

1. Ohio's statute/closed list of MFs violates individualized sentencing requirement in Woodson (1976). 8A per Woodson requires that DP statutes allow consideration of ME relating to: (a) D's character, (b) D's background, and (c) circumstances of the offense. a. Must consider this bc DID—need to respect uniqueness of individual is far more important than in non-capital cases. Why? Bc non-DP sentences have inherent checks to modify sentences based on D's individuality—such as parole, probation, work furloughs and various post-conviction remedies. 2. NOTE: Basically, you can channel discretion, but not too much. 3. NOTE: What doesn't fall within three ME categories? Effects of execution on D's family, V's background, if V's family is against the DP, patterns of distribution of DP (e.g. race), painfulness of DP, residual doubt.

Steiker

1. The fact that DP is purposeful act means it creates unique harms that don't occur when Gov simply fails to regulate and leads to undeterred private murders. a. Those who purposefully transgress are more blameworthy. They chose their course of action (retributive justice) and are more likely to act similarly in the future (consequentialism). b. CP is unique in that it has negative impacts that go beyond the fact that it is a killing—it's also a punishment. This includes public affixing of blame, shame, and condemnation. Vs of private murder don't receive these other negative impacts. c. CP is a disproportionate punishment bc capital offenders are generally less morally culpable. They usually have limited intellectually, mental illness, addiction, abuse, societal deprivation and thus don't deserve all the blame for their acts. d. Gov is just as responsible for murders it doesn't prevent by fixing those root issues. e. Purposeful punishment (vs. death by failure to regulate) can lead to an inference of racial animus on the part of state actors. Especially bc it's arbitrary who gets the DP. f. Human dignity: punishment affects not just the punished; it can also damage the human capacities of those of us in whose name the punishment is inflicted. When infliction of extreme suffering is yoked with emotions of righteousness or satisfaction, it will suppress our ordinary human capacities for compassion and empathy. It weakens our psychological constraints against brutality. By limiting our ability to empathize, we limit our human agency. 2. SV's theory leads to slippery slopes: Execution of innocents, etc. a. Thus we must rely on deontology, and not just utilitarianism, to justify why we shouldn't use DP on non-murder crimes, or why we shouldn't torture. 3. Responding to emergency threshold arguments that say we can't just cling to deontology if there are many lives on the line (torturing a terrorist to find a bomb) a. There is no situation in the criminal context where criminal punishment is the only means to avert substantial harms. There's always choice between different punishment strategies or even using that money in an unrelated field to save lives (like AIDS research).

Caldwell Marshall plurality

1. Violates 8A Heightened Reliability requirement to rest DP on determination made by sentencer who has been told that responsibility for determining appropriateness of D's sentence rests elsewhere. (NOTE: due process not discussed.) a. Specific reasons to fear substantial unreliability as well as bias in favor of DP when there are state-induced suggestions that sentencing jury may shift its sense of responsibility to an appellate court. i. It increases the chance jury would impose DP. (a) Might convince jury that they can "send a message" disapproving of D's conduct by sentencing DP under mistaken belief that SCT will correct their decision (b) actively encourages them to sentence DP bc that's only way to pass decision on to SCT, since it won't review LWOP. ii. Appellate court/SCT is ill-equipped to evaluate in the first instance the appropriateness of DP. (a) Can't see all of the intangible evidence jury can (and this violates Woodson's individuality requirement) (b) can't grant mercy—can only rule on appropriateness of sentence; whereas jury can grant mercy regardless of the facts ("there is no appellate mercy") (c) gives deference to jury's decision.

Herrera Rehnquist majority

1. You're not innocent. What due process entitles to you is a fair trial, and he already got that. a. "Once a D has been afforded a fair trial and convicted of the offense ...presumption of innocent disappears ... Thus, in the eyes of the law, petitioner does not come before this court as one who is 'innocent,' but as one who has been convicted by due process of two brutal murders." 2. A claim that the D was wrongfully convicted in light of new evidence can almost never be basis on which to grant habeas relief. a. Acceptable as a gateway claim, but not a freestanding claim. Ds can use claim of AI based on new evidence to rebut claims of successive of abusive use of the writ in order to bring a separate constitutional claim (known as the "fundamental miscarriage of justice" exception). b. (Assumption)A truly persuasive demonstration of AI made after trial might render execution unconstitutional and warrant habeas relief. But only no state avenue open to process a claim. And would have to be a very high bar, which D here has surely not met, bc (1) very disruptive effect that entertaining claims of AI would have on the need for finality in capital cases (2) enormous burden that having to retry cases based on often stale evidence would place on the states. 3. Rationale a. Federalism. Few rulings would be more disruptive of our federal system than to provide for federal habeas review of freestanding claims of AI. b. Not clear what relief should be granted. Commutation of DP? Release? New trial? Typical habeas relief granted is a conditional order of release unless State elects to retry. If retrial, the new trial likely wouldn't be more reliable bc too much time will have passed. c. Not worried about innocence bc there's another path. In such compelling circumstances, clemency solves the risk of wrongful convictions. d. Finality. e. No DID for habeas. Under our doctrine, DP does not require a different standard of review on federal habeas corpus.

Habeas interests at stake

Anti Habeas: - Federalism/Comity - Crime-fighting (not allowing bad guys to go free on technicalities) - Judicial economy (takes a lot of time to go through habeas petitions) - Finality - Keeping trial as main event Pro-Habeas - Vindication of USC rights through having a forum for adjudication - More immune from local influence (appointed by POTUS who has national constituency) - Uniformity - Policing the police and state courts - (Nobody wins anyway)

Note on right to counsel in state post-conviction proceedings

Bounds v. Smith (1977) Held that prison authorities required to assist inmates in preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law. This is bc of fundamental USC right of access to the courts. Pennsylvania v. Finley (1987) Held that neither DPC nor EPC (meaningful access to courts) required state to appoint counsel for indigent prisoners seeking postconviction relief. (1) Counsel in postconviction proceeding acts like a sword (trying to overturn a prior determination of guilt instead of a shield against the state haling D into court) (2) Postconviction isn't part of the criminal proceeding and is civil in nature (3) states don't have to provide postconviction relief, so can't be required to supply a lawyer.

Herrera O'Connor and Scalia concurrences

Concurring (O'Connor) 1. USC doesn't allow execution of an innocent, but we don't have to resolve whether or not FedCourts should be able to entertain AI claims in habeas bc D is obviously not innocent. D not innocent bc was found guilty in a fair trial. a. NOTE: Her reframing of the QP is whether a fairly convicted, legally guilty person is constitutionally entitled to yet another judicial proceeding in which to adjudicate his guilt anew, 10 years later, even though hasn't demonstrated constitutional error in his original trial). Concurring (Scalia) 1. AI constitutional right has no basis in text, tradition, or contemporary practice. 2. USC doesn't forbid killing of an innocent as long as received adequate procedure. People find this hard to acknowledge bc we like to think of USC as "Our Perfect Constitution."

McCleskey Powell majority 1-2

Court will assume that the study is valid statistically. Same move Rehnquist pulls in Lockhart. Baldus study does not prove violation of Equal Protection (NOTE: easier claim to dispose of).To prove an EP claim, D has to prove purposeful discrimination that has an effect in his specific case. Thus general statistics can't help bc they don't show intent and they don't speak to his specific case.Court has only accepted statistics as proof of intent to discriminate in certain limited cases (jury selection Batson claims + Title VII violations), but these are distinguishable: (i) it's easier to infer bias on part of decision-makers in Batson and Title VII—"decisions of a jury commission or of an employer over time are fairly attributable to the commission or the employer ... [but] the Baldus study seeks to deduce state "policy" by studying the combined effects of the decisions of hundreds of juries"(ii) decision-maker here has no opportunity to give a non-discriminatory explanation. Our system depends on exercise of discretion; therefore this challenge attacks heart of our system. Cites White in Furman for this proposition. Thus Court would demand exceptionally clear proof before it would infer that the discretion has been abused; won't infer that what is unexplained is invidious.

Noia Harlan dissent

D's custody does not violate USC/any federal law. (a) It's pursuant to conviction whose validity rests upon an IASG which FedCourts are required to accept (b) if state court declines to entertain a federal defense bc of procedural default, prisoner's custody is due to default rather than to the underlying constitutional infringement. Brennan's exception (allowing federal judges to deny applicant if it appears he is "deliberately" trying to bypass state courts) has no teeth. (a) Even if there is such proof, Brennan acknowledges that federal judge could still grant relief in his discretion (b) takes major issue with Brennan's "choice by counsel not participated in by petitioner does not bar relief" (c) Brennan basically reads exception out of existence by saying it doesn't apply to D here even though it's clear he deliberately bypassed state court.

Gregg: Marshall dissent

DP is per se C+U bc of the Marshall Hypothesis and bc it serves no penological purpose. (1) While the legislative response to Furman has admittedly been strong, an informed citizenry would reject DP (2) no proven deterrence, and retribution is fundamentally at odds with purpose of 8A and thus not a valid legislative/penological purpose. "Under these standards, the taking of life 'because the wrongdoer deserves it' surely must fall, for such a punishment has as its very basis the total denial of the wrongdoer's dignity and worth."

Bright, "Counsel for the Poor" Overview

Decision to execute turns on how terrible D's lawyer is: (1) Prosecutors have more money and resources (2) lack of resources and funding for indigent defense (3) state judges are elected and often don't care enough about criminal Ds (4) no funding or knowledge of experts (5) lack of indigent defense programs (6) Strickland tolerates terrible lawyers (7) procedural default rules makes horrible lawyers hard to challenge, etc.

Flowers v. MS (2019) OI

Facts: 1. State struck 41 of 42 black jurors in all the cases 2. State struck 5 of 6 black jurors in the most recent case 3. State engaged in dramatic disparate questioning of white and black prospective jurors a. States asked five black jurors that were struck a total of 145 questions -- asked the 11 seated white jurors a total of 12 4. State struck Carolyn Wright, who was similarly situated to white prospective jurors (prosecutors noted that she was sued and lost to the store that was shot up and that she worked at the same Wal-Mart as Flowers's dad) Holding: violates Bastson, but announces no new rule and simply applies Batson to this case

Brown v. Allen (1953) Reed opinion

For a federal district court in C3, SCOTUS denial of cert. at direct appeal (C1) or state habeas (C2) does not count as federal review/does not count as a ruling with stare decisis/should not be taken as evidence that claim lacks merit. Here, we won't overturn district court's decision to deny habeas (even though it had relied on fact that SCOTUS had denied cert earlier) as there was an adequate alternative ground: the evidence the district court had before it from the state proceedings was adequate to find no merit in petitioner's constitutional claims.

Federal Habeas: Substantive Limitations

Freestanding AI claims on federal habeas (Herrera), with narrow Troy Davis exception. 4A claims on federal habeas, bc exclusionary rule is a remedy, NOT a constitutional right (Stone)

Quinones Cabranes majority

Herrera & Gregg prove there is no right to keep challenging your innocence. NOTE: this is how 2nd circuit chooses to interpret the right the district court found. a. DP is constitutional under the 8A. Gregg. NOTE: this citation a bit unfair bc that was pre-innocence revolution. b. No constitutional right under 5A DPC for a lifetime opportunity to prove your innocence. i. Rakoff is wrong to talk about "evolving standards," that's for 8A. While not completely static, DPC is based on the long-seated traditions and conscience of the people. ii. DP is mentioned three times in the DPC. iii. The right/liberty interest to seek opportunity to exonerate oneself isn't one of the fundamental rights so rooted in the traditions of the people so as to be implicated by the DPC. (1) AI not a valid claim and risk of executing innocents hasn't been found uncon throughout our history even though Court was aware, including in Herrera (2) Congress was aware of risk of innocent executions and still enacted FDPA (3) Furman dissent by Marshall and Brennan make it clear that Furman Court was presented with and declined to adopt argument that DP unconstitutionally deprives innocents of the opportunity to exonerate themselves. 1. NOTE: Cite to Herrera unfair bc that was in habeas context, whereas this in merits phase. NOTE: What about an argument that the DNA evidence makes DP unreliable under 8A? Steiker: not clear that Herrera/Gregg foreclose that argument.

Strickland majority

IAC happens when counsel's conduct so undermined proper functioning of adversarial process that trial cannot be relied on as having produced just result. Announces two part test to determine: a. Performance Standard. Counsel's performance must be shown to have been deficient, such that conduct fell below objective standard of reasonableness at time of the trial. Court: i. Argues for vague "reasonableness" standard instead of more detailed test. No dispositive rules; general duties listed but these are only guidelines, not a checklist (duties: of loyalty, to avoid conflicts of interest, to advocate for D's cause, to consult with D on important decisions, to keep D informed, to bring skills and knowledge to bear). ABA standards can be helpful. ii. Worried about slippery slope of checklist. (1) Counsel's performance and willingness to serve might be adversely affected as defending client is art, not science (what's deficient in some circumstances is brilliant in others) (2) checklist might hurt Ds (reviewing courts may only look at checklist items) (3) floodgates of litigation (NOTE: this is most important for O'Connor, doesn't want second trials each time based on Monday Morning Quarterbacking). iii. Must be highly deferential. Must not view decisions with benefit of hindsight; strong presumption that counsel's conduct falls within wide range of reasonable professional assistance. Less deferential standard might (1) encourage frivolous IAC claims (2) discourage development of independent defense counsel (3) discourage defense from trying creative strategies. iv. Two things are "virtually unchallengeable." (1) Strategic choices (but must have a reasonable investigation first to claim the strategy it is based on is reasonable) (2) Reliance on client (either what they have told you or what they want you to do) b. Prejudice Standard. D must show counsel's errors were so serious that they deprived D of a fair trial. i. Standard of proof. D bears the burden: reasonable probability that, but for counsel's errors, result of proceeding would've been different. Reasonable probability = probability sufficient to undermine confidence in outcome, it is less than 50% (used in Brady claims, between MLTN and "impaired defense" standards). ii. Judge + jury presumed to have acted reasonably. Can't consider whether judge known to be unusually harsh or lenient. iii. Must consider the totality of the evidence. Some findings might have changed, some might not have. If a verdict was weakly supported to begin with, there's bigger chance of error. iv. NOTE: O'Connor likely created a prejudice standard bc worried about perverse incentives of counsel deliberately messing up something small. Application to case facts—claim invalid.No deficiency. These were strategic choices to rely on judge's reputation for leniency and to prevent state from introducing rebuttal evidence (Steiker: actually, lawyer is manifestly deficient here)No prejudice. D qualified for almost every statutory AF and almost no MFs, really unlikely outcome would be any different.

Kennedy, "McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court" Overview

If we consider DP as form of justice, Blacks are getting much less justice bc murderers of white Vs get DP much more frequently. One solution is to have an affirmative action where you try to even numbers out. But that would perversely mean going after more Black Ds, who are the ones who kill Black Vs—and do we really want prosecutors thinking about quotas?

Jury Selection NB 1-2

Jurors have a special role in DP cases bc they are involved in sentencing. Constitutional provisions that affect jury selection6A "impartial" has been interpreted to have 2 requirements: i. Jury that is a fair X-section of the community. 1. Applies to venire, not petit jury, bc with only 12 ppl can't possibly be fair X-section. Just have to show that everyone had an equal chance to be placed on petit jury. 2. Discrimination doesn't have to be intentional. Disproportionate impact/"systematic exclusion" is sufficient. 3. Distinctive groups include not just suspect classifications but any group that might have a perspective that affects their decision unrelated to their ability to conscientiously apply the law and find facts. NOTE: includes day laborers! ii. Allowed to exclude for bias 14A Due Process i. Often mentioned bc no 6A right to a sentencing jury, but courts still apply 6A protections by incorporating them through the 14A DPC. 14A Equal Protection (EP). i. Used for Batson challenges ii. Applies to petit jury iii. Requires showing intentional discrimination iv. Applies it to suspect classes (but in Batson only about status, not viewpoint things which normally get strict scrutiny, like religion and politics)

Coleman v. Thompson Blackmun dissent

Majority obviously just tired of how broad federal habeas doctrine is and thus is creating procedural barriers in the name of federalism. The federalism argument is weak. (a) Federalism not about blindly protecting states from incursion by FedCourts—it's about diffusion of sovereign power, and in that sense, holding state governments accountable through federal habeas makes sense (b) states aren't coequal with FG—federal habeas review is merely respecting the Supremacy Clause (see Frankfurter's opinion in Brown).

Sykes Rehnquist majority

New standard for federal habeas petitioner who failed to comply with state procedural rules but still wants review of defaulted USC claim. (1) Must show CAUSE for the procedural default + PREJUDICE arising from default in order to obtain review of defaulted USC claim OR (2) can demonstrate that failure to consider claim will result in a fundamental miscarriage of justice (FMJ) (Coleman v. Thompson).NOTE: Court doesn't actually specify what "cause" and "prejudice" mean.NOTE: new rule is much narrower than Noia. Habeas review isn't available merely bc D did not "knowingly" and "deliberately" try to bypass state courts. NOTE: Cause and prejudice also used to apply to successive and abusive uses of the writ, but AEDPA now overrides that rule. It still applies to procedural default, though. Justifications for new rule. (a) Allows judges to resolve USC objections early, when witnesses are freshest (b) preserves finality in criminal litigation (c) discourages sandbagging issues (d) encourages prosecutors to follow constitutional procedure (e) concentrates issues in trial and ensures it's the "main event"—this is appropriate bc that's where society has focused most of its resources to determine truth of the case.NOTE: He's worried that under Noia rule, state courts won't enforce their own procedural rules in order to reach the merits of every claim and prevent Ds from reaching federal forums without decisions (and thus law and facts) on the record.

Williams v. Taylor Brennan dissent

No, § 2254(d) did not alter the grant of Jx in § 2254(a). (i) FedCourts get to say what federal law is (ii) a construction of the habeas statute to remove that province to the state courts would have been identified by Congress with much clearer language than exists here (iii) 2254(d)(1) merely codified Teague and prohibits reliance on new rules in federal collateral proceedings—only way in which it's stricter is that limited to law established by SCOTUS. NOTE: Stevens' decision was criticized for (i) giving new § 2254(d) provision no practical meaning (ii) not accounting for fact that the statute's language had become more stringent and that Congress had tried so many times to do this before they succeeded with AEDPA; this was not just codifying Teague!

Brown v. Allen (1953) O

Overall: Frankfurter opinion, which is what we care about: on federal habeas review, FedCourts should be deferential to state findings of fact but de novo for questions of law and mixed questions (Note: he purports to "interpret" the pre-AEDPA habeas statute but doesn't really reference it; judges feel like they have a lot of latitude to define what habeas law is).

Hurst v. Florida (2016)

Overturns Profitt (1976) 40 years later. 6A requirement: judges can do capital sentencing BUT, whether there's an advisory jury or not, judges can't be the one to decide on the existence of AFs bc those are functionally elements of capital murder. (NOTE: what sort of scheme would constitutionally allow judges to do capital sentencing? One where jury unanimously finds AFs and MFs and then judge weighs them).

Nathanson: Does it Matter if the Death Penalty is Arbitrarily Administered? overview

Overview: (1) CP is arbitrary and thus immoral and unconstitutional—both the composition of the pool and those who get selected from the pool are arbitrary and reflect discrimination (2) comparative justice matters (3) even though all punishments are arbitrary to some degree, DID and thus we should get rid of DP.

Burger v. Kemp (1987) OI

Overview: (1) Presenting no ME at all can be excused based on Strickland safe harbors: (a) what client told you and (b) strategy; (2) Under Strickland, counsel conduct must be examined for reasonableness in light of circumstances, applying heavy measure of deference. Issue: Federal Habeas Review; had been found guilty with Co-D of murdering someone in the military. Facts about D. (1) Was 17 (2) IQ 82 (substantially below average; low IQ should've been used to show easily manipulable) (3) terrible childhood (kicked out of home many times, selling shoes to get home to his mother, etc.). What counsel did/didn't do. (1) Didn't learn of any ME bc only asked D to give him names of ppl who can say "what's good about you," thus missing fact that D had terrible childhood (2) talked to D for 6 hours at most (included time discussing trial) (3) didn't get psych evaluation bc state experts had shown bias before, even though could've challenged to get independent expert (4) didn't call a lawyer family friend as character witness bc he was Black and they were in South (5) only knew about mom bc she contacted him + didn't have her testify bc it would reveal that D once stole candy bar—even though mom could've discussed his terrible childhood + moms are always very humanizing (6) atty lost once, had verdict overturned for something else, then tried exact same strategy on 2nd trial!NOTE: Worst atty ever—good lawyer would've had a lot to work with here. Counsel's defense of himself. Said (1) he was being strategic (NOTE: see explanation for each action above) and (2) was basing off what client told him when asked, "what's good about you?"

Harrington v. Richter OI

Overview: (A) When state court's order is unaccompanied by a statement, it is presumed to have been a decision on the merits under 2254(d)(1) if FedCourt can conceive of a reasonable basis. Petitioner has burden to show the decision was unreasonable; can do this by showing that some other explanation for the state court's decision is more likely (B) Given Strickland itself is deferential, that creates double deference on IAC claims. Issue: D made IAC claim (counsel fails to investigate blood spatter evidence); state habeas court dismisses him with no opinion. Federal habeas court of appeals (C3R2) ruled for D — said 2254(d)(1) probably didn't apply bc SCT only issued a summary denial. Then said, even if it did, counsel was Strickland ineffective.

Turner v. Murray (1968)

Overview: In a capital case, a D involved in an interracial crime is entitled to ask prospective jurors in voir dire about racial attitudes and bias. White Majority D in capital case involving interracial crime is entitled to have prospective jurors informed about the race of V and questioned on issue of racial bias. So in those instances sentencing judge can't refuse to ask race questions during voir dire.NOTE: Not required in non-capital cases; required here b/c DID ("together with the special seriousness with which we view the risk of racial prejudice [in capital sentencing])"

Eddings v. Oklahoma (1982)

Overview: Just as a statute cannot limit what ME can be considered (Lockett (1978)), sentencer cannot refuse to consider, AMOL, any relevant ME, bc culpability is the heartland of mitigation. Issue 1. OK's statute had list of AFs to be weighed against "all mitigating factors"; doesn't define these MFs. OK judge says that AMOL, cannot consider D's mental state OR violent upbringing bc he knew difference b/w right and wrong and thus that info isn't mitigating. a. NOTE: D was a 16 YO who killed a cop on a joyride.

Cullen v. Pinholster OI

Overview: Must evaluate 2254(d)(1) "on the merits" state court claim for contrary/unreasonable applicable of SCOTUS federal law using only evidence available to the state court. No new facts! Issue: When deciding whether state court's decision was contrary to/unreasonable application of federal law under 2254(d)(1), can you consider new evidence? i) Text of §2254(e)(2). Says that federal habeas court cannot hold an evidentiary hearing unless— (1) "The claim relies on (i) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; OR (ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; AND (2) The facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense."

Woodson v. North Carolina (1976) o&I

Overview: Post-Furman mandatory DP statutes unconstitutional bc they (1) violate ESD (2) they fail to control for discretion (due to potential of jury nullification) and (3) 8A requires individualized death sentencing based on D's character and circumstances of the crime out of "respect for [D's] humanity"—bc DID! Issue 1. Is mandatory DP C+U?

Franklin v. Lynaugh (1988)

Overview: Residual doubt not required to be let in as ME. Issue 1. At trial (under the pre-91 Texas statute), petitioner's ME included "residual doubts" about guilt, as well as his disciplinary record in jail. TC declined to give requested instructions and sentenced DP. 2. On collateral review to SCOTUS, D alleged that TX Special Issues scheme violated 8A bc did not provide sufficient opportunity for the jury to consider his ME. Plurality (White) (collateral review) 1. Neither instructions actually given nor TX Special Issues scheme precluded jury consideration of any relevant ME, or otherwise unconstitutionally limited the jury's discretion. Not required to let in "residual doubt" evidence.

Steiker: No, CP Not Morally Required overview

Overview: SV's assertion that state's execution of murderers is equivalent to its failure to adequately deter murders by private actors doesn't just set aside act/omission distinction, but also the distinction between purposeful wrongdoing and reckless wrongdoing: (1) purposeful killings can be uniquely unjust and lead to slippery slopes (2) risk-risk tradeoffs in the regulatory sphere are inapposite—in the regulatory context, when a Gov makes life-life tradeoffs, its treatment of the lives on either side is identical (in neither case is the government's purpose to take a life).

Caldwell v. Mississippi (1985) OI

Overview: Unconstitutional to allow DP sentence to rest on determination made by sentencer who has been led to believe that responsibility for determining appropriateness of sentence rests elsewhere/that the bird is ultimately not in their hands (but can be told accurately about appellate procedure). Issue 1. Prosecutor tells jury that they are not final decision-makers + SCT will automatically review and overturn if jury makes mistake. In reality, under state law, review just looking for legal errors w/ presumption of correctness; not review of appropriateness of sentence.

Obstacles to habeas relief: Successive + abusive petitions for writ:

Pre: 2. Successive + abusive petitions for writ: judge discretion "ends of justice." Post: § 2244(b)(1) + (b)(2) controls now: "should be dismissed," only (b)(2) exception—rule that SCOTUS itself says retroactive to habeas (can always do whenever it wants) OR couldn't have brought it + clear and convincing evidence of AI. MUCH tougher than old abuse of writ doctrine.

Obstacles to habeas relief: SoL

Pre: 4. Statute of Limitations: before, only the common law rule of laches/abuse of the writ. Post: 2244(d): 1 year SOL, a lot of doctrine about when can be tolled equitably. When C2 ends, then clock begins. Interesting pt: 5-4 SCOTUS said that FMJ trumps the 1 year SOL

Obstacles to habeas relief: cognizable claims

Pre: 6. Cognizable Claims: no for 4A, AI, or new law Post: same

Obstacles to habeas relief: Evidentiary hearing

Pre: 7. Evidentiary Hearing: held at judge's discretion/good cause Post: Pinholster doctrine: 2254(d) means no hearing in FedCourt if facts developed in state court in case on merits. If not on merits, only way to get hearing is through 2254(e)(2): basically cause +prejudice: failure to develop facts not attributable to D AND facts underlying the claim would show with clear and convincing evidence that but for constitutional error, wouldn't have been found guilty of offense.

Obstacles to habeas relief: non retroactivity

Pre: Non-Retroactivity: Teague doctrine Post: Same as before (non-statutory, this is federal common law): At threshold in habeas proceeding, have to ask if asking for something dictated by precedent and if not, if falls within one of the exceptions (really only the first (primary conduct) exception bc the second (watershed rules of CrimPro) is a null set).

Harmelin Scalia

Scalia (Not reigning rule; only announces judgment of the Court) 1. D loses (judgment of the Court) 2. 8A doesn't require proportionately in non-DP cases. (A) History + original meaning shows C+U has nothing to do w/proportionality of punishment to specific crime; it's just about whether certain modes of punishment are permissible (B) No objective way to determine whether punishment is proportional to a crime—it's subjective + that's for legislature. a. NOTE: Scalia sets aside whether there's proportionality requirement for DP; is willing to adhere to Coker (even though ignored precedent in Walton, where he said giving up on W/L/E). b. NOTE: Extreme to say C+U only about modes of punishment; note two dangers White raises in dissent: (1) No mechanism for dealing with hypo where legislature assigns LWOP for parking violation (Scalia says this would never happen) (2) How would you make sense of Court jurisprudence which does not limit DP as a mode but instead puts limits on its application? 3. Mandatory sentencing isn't C+U. Has been used throughout our nation's history.

Stephen Garvey, "Aggravation and Mitigation in Capital Cases: What Do Jurors Think"

TW: Among the many notable findings, (1) residual doubt is single most mitigating factor (though jurors aren't required to be able to consider this under Franklin v. Lynaugh (1988)) and (2) future dangerousness is most damaging AF (3) though they may not realize it, they act very differently depending on who the V is. The results here generally are scary and make us doubtful of the entire post-Furman enterprise of trying to confine discretion. Methodology 1. Put together a survey asking jurors who actually sat on capital cases how they did or would react to a variety of factors in making sentencing decisions. Focuses on trials in SC, 41 cases overall. Findings 1. Good reason to think jurors don't really have good grasp of instructions they receive. Many think that default sentence is DP, or that AFs doesn't need to be proven BRD, or that they must hand down a DP if they find an AF. a. Steiker: Many don't even understand the words "aggravating" and "mitigating." Some attempts to use more plain language, but it's not being adopted anywhere. 2. Jury's intuitions don't really map onto the law. (1) Residual doubt over D's guilt is the most powerful MF (2) Perceived lack of remorse is highly aggravating, but Ds usually don't go on stand (so these judgments are being made based on demeanor during the proceedings; D counsel are thus sure to coach up D, touch their arm during trial to humanize them, etc.) 3. Drug addiction and alcohol addiction are supposed to mitigate per Eddings, but many jurors see it as aggravator. Jurors are basically following Eddings (which says you must factor in all ME but you can decide the weight) through assigning negative weight! 4. Jurors not very self-aware—what they say and what they do is very different. They say we treat all cases alike regardless of the V, but it turns out they act differently based on who the V is. We all believe self-serving things (like that we act impartially) that are not true. 5. Other a. General trends. (a) Jurors who handed down DP tended to be less moved by both AE and ME (b) the fact that V's family or the community wanted DP had little effect on their decision. b. AFs. (i) Especially brutal murders are highly aggravating (ii) murders involving child Vs are highly aggravating but other than that jurors claim that V's status doesn't matter (iii) future dangerousness is highly aggravating (iv) lack of remorse is highly aggravating. c. MFs. (i) Lack of future dangerousness some mitigating potential but limited impact (ii) residual doubt is most powerful MF (iii) circumstances over which D had little or no control that diminish individual responsibility at time of offense are highly mitigating (iv) jurors less sympathetic if they thought MF was in D's control (such as being drug addict or being drunk), though helps D if had tried to get treatment but was denied. d. Overall, higher weight placed on proximate culpability (ability to control behavior) than remote culpability (general character, how treated as child). This shows that greater weight is placed on individual responsibility than collective or societal responsibility.

Troy davis Stevens concurrence

The Court can provide relief. The substantial risk of putting an innocent man to death provides adequate justification for granting habeas review and holding an evidentiary hearing. Scalia is wrong Scalia argues that even if district court persuaded by D's new affidavits, it would have no power to grant relief bc of AEDPA 2254(d)(1). But (i) that provision may not apply at all, or apply with same rigidity, to original habeas petition (ii) may also be relevant that D brings an AI claim—if AEDPA bars relief to a DR inmate who has established AI, it is probably unconstitutional.Scalia is wrong for assuming as a matter of fact that D is guilty of murder. Court sends case back & gives it hearing on innocence in federal district court (Court too busy itself to do the evidentiary hearing). NOTE: Lower federal court decides there isn't enough evidence to prove AI.

INDIVIDUALIZED SENTENCING: Tension b/w the Pillars

The tension is the central tension in law: How do you treat like cases alike while also accounting for relevant differences? It's easier in non-DP criminal law, bc these pillars are not constitutional requirements and thus tension not as strong.

Gregg: White concurrence

The unfettered mercy allowed by the GA statute is OK. Discretion is sufficiently limited by (1) the requirement to find an AF and (2) the automatic review by SCT.

Marsh Souter dissent

Unless 8A no longer calls for reasoned moral judgment in substance as well as form, statute is unconstitutional (insists discussion of innocence is in fact relevant here). Given mounting evidence that we are sentencing innocent people to death, we can't allow a system that allows DP in doubtful cases (such as where MFs balance out AFs); we should have preference against DP: (i) Studies show that innocents have been exonerated in high numbers (Illinois had exonerated more people than it had executed) (ii) many reasons to think there will be false convictions in homicides (difficulty of investigating with V gone, pressure to get a conviction, incentive for guilty to frame the innocent).

Federal Racial Justice Act

(never passed) (a) Could present statistical evidence of either race of V or race of D (2) establishes inference of racial discrimination that P can rebut (but not easily) (3) contains provisions helping D get around AEDPA issues.

8A Proportionality Test—T1 (DP cases/deciding categorically for a class of Ds)

1) Objective indicia of ESD: a) "We seek guidance in history and from the objective evidence of the country's present judgment concerning the acceptability" i) State legislative enactments (Coker) (1) Speed and direction of change (Atkins) (2) Bills passed with overwhelming majorities (Atkins) (3) Interaction of two or more statutes —> no state intent (Graham) ii) Jury Decisions (Coker) (1) Are juries actually imposing the penalty? (2) Is there a trend? (Coker) (3) Geographic concentration—does one state impose majority of sentences? (Graham) iii) Number of actual executions vs. those just sentenced (Enmund) iv) Prosecutor decisions (Enmund) v) Strategically use or don't use abolitionist states (Roper, Atkins uses; doesn't use in Tison) vi) International Opinion + social/professional consensus (Roper; Atkins) vii) Public opinion polls (Atkins) 2) Court's Own Judgment/Subjective Assessment of Purpose of Punishment a) "The attitude of state legislatures and sentencing juries do not wholly determine this controversy, for the Constitution contemplates that in the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment." i) Deterrent effect (e.g., Roper juveniles are less deterred) ii) Retributive effect (e.g. Coker rape is really bad, but it's not as bad as homicide, so we shouldn't kill rapists) iii) Increased risk of DP wrongly imposed (either bc of wrongful conviction or wrongful execution) (Atkins; Kennedy)

2254e

1. 2254e (state decision not on merits): If claim was NOT adjudicated by the state on the merits, then Federal court reviews claim de novo But federal court still owes deference under 2254(e) to state factual determinations. i. Section 2254(e)(1). In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence. ii. Section 2254(e)(2). If D failed to develop the factual basis of a claim in State court proceedings the court shall NOT hold an evidentiary hearing on the claim unless the applicant shows that (1) the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by SCOTUS, that was previously unavailable; or (2) a factual predicate that could not have been previously discovered through the exercise of due diligence AND the facts underlying the claim would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

Lowenfield Rehnquist majority

1. AFs for sentencing can be same as elements of a crime ("double dipping" is fine). a. You need narrowing (which is what channels jury's discretion), and not further guiding, to be constitutional. i. Citing Stephens: "A capital sentencing scheme must genuinely narrow the class of persons eligible for the DP and must reasonably justify the imposition of a more severe sentence on the D compared to others found guilty of murder." b. Narrowing can happen anywhere; one of two ways. (1) Narrow at guilt phase where legislature narrows list of capital offenses. Fewer people will be found guilty of crimes that make them eligible for DP so less need to narrow them further by AFs. All that's required then is that sentencer can consider ME + has discretion (2) Narrow at sentencing: broad definition of capital murder + narrow with AFs at sentencing (GA, FL). 2. NOTE: Court never tells us how much narrowing is necessary. List of AFs only grow from here on out—now encompass 90%+ of murders! (this growth in AFs is referred to as "Aggravating Creep.")

Gilad Edelman, "Why Is It So Easy for Prosecutors to Strike Black Jurors?," The New Yorker (2015) (C1225)

1. Batson claim. (i) Establish prima facie case for racism/discrimination in jury strikes (normally by proportion; Miller-El (2005) was over 90%) (ii) P gets to give "race neutral" reason for strike—accepted race neutral reasons: too young, too old, living with girlfriend, overeducated, lack of maturity, agreed with OJ Simpson verdict, watched gospel TV programs...Prosecutors literally get training sessions on "articulating jury negatives" 2. Batson has not solved the problem. Prosecutors strike Black jurors at up to twice the rate of non-black jurors.

Weisberg: The Death Penalty Meets Social Science 1-3

1. Before Ehrlich (No deterrent effect, but studies flawed). a. Thorston Sellen engaged in side-by-side comparisons of neighboring states. Found that states w/o DP didn't have higher murder rates. Over time, similar trends in side-by-side Jxs. Difficulties: You couldn't control variables in these studies; how are we supposed to know that DP use is the driver? b. Looking at changes within states that abolished CP and those that reinstated. Found no deterrence. Difficulties: These states possibly abolished CP bc homicide rates falling (recursive effect/reverse causation). 2. Ehrlich (deterrent effect, but studies flawed). a. Ehrlich uses multivariate regression, which allows you to hold other variables constant. Huge development. NOTE: Not as good though as randomized control trial, where neither side would know. But you just can't do this with DP; even VDH couldn't support, bc of due process + moral concerns. b. His 1975 study tracked 1933-1969 and finds substantial deterrent effect. Picked up by Solicitor General Robert Bork, who heavily cited Ehrlich as an amicus after Furman (1972)) c. 2-3 Main Criticisms. (1) No marginal analysis (didn't account for LWOP, which wasn't really a thing until 1970) (2) omission of last four years of his study completely loses the deterrent effect (deterrence is supposed to be pretty universal!) (3) Bailey couldn't find an effect in most of the individual states studied. 3. After Ehrlich (substantial deterrent effects, but studies flawed). a. The next generation did panel studies, which involving taking enough snapshots over time to reach conclusions. DRS study uses panel data and finds really substantial deterrent effects (18 lives per DP!), as do some other studies. NOTE: Ehrlich's main study involved a national time-series and only some snapshots.

Furman: Burger dissent

1. Contemporary society not clearly against DP. No evidence that CP offends the conscience of society to such a degree that our traditional deference to legislative judgment must be abandoned. In fact, it's authorized in a majority of states and in the FedCourts. 2. (DISCRETION) Majority's decision is unclear and has left uncertain the future of DP. It could require that states provide standards for imposing DP, but we just said in McGautha (1971) that this is impossible. It could require mandatory DP, but this would eliminate jury's discretion to provide mercy, and in that event I would rather just abolish it completely. 3. Rareness of DP is a good thing. We need to be cautious in its application. Is making it mandatory what you want? a. "The very infrequency of death penalties imposed by jurors attests their cautious and discriminating reservation of that penalty for the most extreme cases." 4. Trust in jurors is a keystone in our system of criminal justice. We shouldn't take away their discretion for the most sensitive and important decisions.

Tison Brennan dissent

1. Court fails to prove that DP here is proportional to crime. Instead they just create a new category and assert D falls into that category without explaining why someone who participates in felony with a reckless state of mind that results in death deserves same punishment as someone intending to murder. 2. Court misapplies T1 test. a. Objective Factors i. Court misleads in its citation of state acceptance of imposing DP in cases like this. They exclude states (A) that have abolished DP, or (B) authorize it only in limited circumstances different from this case. If you consider these factors, 29 (3/5ths) states would disapprove of DP in this case. ii. Court doesn't mention number of sentences imposed, which is important to consider. No person has been sentenced to DP if they didn't have intent to kill or actually killed/attempted to kill the V. b. Own judgment i. Intent is a fine standard for non-triggerman. Majority's examples on why intent is a bad standard for culpability (like a torturer who accidentally kills someone) are flawed bc in each instance D did the killing. But here no intent and D did not kill. ii. What about deterrence and retribution? Doesn't serve either of them. 3. Reiterates belief that DP always C+U b/c no procedural machinery can ensure DP sentencing conforms to substantive 8A principles. Has been saying this since Furman (1972).

Coker Powell concurrence

1. Court goes too far in saying DP for rape of adult categorically unconstitutional. (1) DP is C+U in this case bc neither evidence that the rape was excessively brutal nor that it caused serious/lasting injury (2) BUT some rape Vs suffer horribly/their life is beyond repair—degree of culpability of rapists thus varies.

Coker Burger dissent

1. Court has improperly substituted its policy judgment for that of the states. States should get some discretion; 8A proportionality test only prevents DP being imposed for "minor" crimes and rape not a minor crime. a. "Today's holding forecloses the very exploration we have said federalism was intended to foster." 2. Plurality's holding prevents states from effectively punishing D/provides no marginal punishment. He was already in jail for life; now he's still in jail. 3. "Objective" factors cited by the plurality fail. (A) Timeframe too short; only been 5 years since Furman—3 states might be beginning of trend (B) similar to what Court said in Woodson about states that brought back mandatory DP—maybe states didn't bring back DP for rape bc worried it would fail Furman, not bc actually disapprove.

Troy Davis Scalia dissent

1. Court has no power to grant habeas relief under AEDPA. (i) AEDPA is only tool for FedCourts to release convicted state prisoners (ii) AEDPA bars (for any claim adjudicated on the merits in the state) issuance of habeas writ unless the adjudication resulted in a decision that was contrary to or involved an unreasonable application of clear federal law—this was not that, and absurd to suggest so! We've never clearly established that the USC forbids execution of convicted D who had fair trial. NOTE: Scalia is correct here. 2. Listening to Stevens would mean nullifying 2254 (d)(1). Stevens says we need not be deterred by limits Congress has placed on federal habeas b/c the district court might find those limitations unconstitutional as applied to AI claims. But this would (i) nullify 2254(d)(1) and (ii) there is no sound basis for distinguishing AI from any other claim that produced a wrong conviction.

Roper v. Simmons (2005)

1. Court overrules Stanford 5-4, holding that DP is disproportionate for Ds who were juveniles (under 18) at time of offense. T1 Analysis: a. Legislatures: 30-20 + trend. 18 states ban + 12 abolition states + trend towards abolition. b. Jury sentencing: Only 6 juveniles executed since Stanford (1989). (Like the 5 ID executed since Penry inAtkins) c. Cited (in the text, not just FN!) that US only country in world that allows execution of juveniles. i. "It does not lessen our fidelity to the Constitution or our pride in its origins to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples simply underscores the centrality of those same rights within our own heritage of freedom." ii. NOTE: This drives Scalia nuts! "The Court reaches this implausible result by purporting to advert, not to the original meaning of the Eighth Amendment, but to 'the evolving standards of decency' of our national society ... [which it determines by reference to] the subjective views of five Members of this Court and like-minded foreigners." d. Retribution/deterrence/culpability. (1) Decreased culpability: common knowledge ("any parent knows") + scientific studies all suggest children's' mental faculties are different than adults (2) thus less penological justification for DP. 2. NOTE: Scalia very frustrated that the 12 abolition states are being added, famously says: "Consulting States that bar the death penalty concerning the necessity of making an exception to the penalty for offenders under 18 is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course, they don't like it, but that sheds no light whatever on the point at issue."

Payne Marshall dissent

1. Court violates stare decisis. Law hasn't changed since Booth and Gathers; only the composition of Court has. This is bad way for us to operate and will have terrible consequences for Court's prestige. 2. The probative value of VIE is always outweighed by its prejudicial effect. VIE has an inherent capacity to draw jury's attention away from D's culpability (character, background, circumstances of crimes) and shift it to such illicit considerations as the eloquence with which family members express their grief and the status of the V in the community.

Comparing the two tracks 1-2

1. Court's differentiation between the tracks doesn't map well to the cases and offers little predictive value. (Least helpful, most confusing part of DP jurisprudence). We used to think T1 for DP, T2 for non-DP. But then in Graham + Miller, LWOP sentences were analyzed under T1. Justice Kennedy says we misunderstood, was always about "categorical" and "particular sentences/term of years." a. This makes Steiker's head explode. Ewing, Andrade, and Harmelin (LWOP for drug possession) all seem categorical, and Enmund doesn't seem categorical at all, rather only suited to him (non-triggerman, neither attempt or intent, not present, minor role). b. Little predictive value bc everything can be framed either way. For example, you might think severe mental illness would be under T1, but then again isn't a clinical category; rather it is a laundry list of certain conditions. If you're challenging you'd say this is a made-up category made of a bunch of little categories that only apply to this particular D. 2. Nobody wins under T2, whereas T1 has been *much* friendlier to Ds. Every D in T2 lost except Solem, whereas in T1 Coker, Enmund, Graham, Miller, Atkins, Simmons, and Kennedy all won (only Tison lost). i. The parts of the tests under each Track are very similar. 1. "Gravity of the offense" = "Court's own judgment" 2. "Same Jx, different crimes" = jury decisions 3. "Same crime, different Jxs" = state legislative enactments ii. So why is there a huge difference in outcomes? 1. Penological purposes. In either track the punishment must be justified with a penological purpose. a. T2 = can invoke any penological purpose, including incapacitation—and time spent in prison, no matter how many years, serves the purpose of incapacitation. b. T1= can only invoke retribution and deterrence (Coker had considered retribution only, but then Enmund added in deterrence too). These purposes are from the plurality opinion in Gregg, which said there are two, and only two, penological purposes. i. Imagine if incapacitation was factored in—no type of DP would be disproportionate bc death is perfectly incapacitating (more than even LWOP bc those people can at least commit crimes in jail). 2. Emphasis on Court's own judgment. T2 places much greater emphasis on this as threshold determination + enacts high burden of proof for it ("grossly disproportionate"), thus much more deferential to the legislature. T1, OTOH, weighs everything equally. 3. T1 also is constantly adding new considerations at both steps.

Stevens majority

1. DP for those with ID is 8A disproportionate. a. Objective factors (a lot of FUN WITH NUMBERS here) i. Legislatures: 30-20. Massive trend/swing—at time of Penry (1989), only 2 states + FG banned DP for ID. In 2002, 18 states ban. And if you add 12 abolitionist states = 30 = a majority! NOTE: How is 18 of 38 a consensus? BS! 1. Says here what's really notable is the "speed and direction of change," thus there's an "emerging consensus." (1) No states have reinstated for ID (2) these bills to ban it passed with overwhelming majorities (3) swing toward mercy is powerful evidence given that anticrime bills are always very popular (4) 2 states passed a ban through 1 of 2 legislative houses (5) some other states that haven't banned feel no need bc never actually execute ID. NOTE: saying all of this to beef up 18. b. Jury Sentencing: 5. Since Penry, only 5 states have executed Ds with IQ of less than 70. c. (Infamous FN 21) Expert, religious organizations, international community (EU filed a brief), and public opinion polls all demonstrate disfavor of killing ID. (NOTE: Scalia LOSES it over this.) 2. Own judgment a. Doesn't serve either justification for punishment (retribution and deterrence). (1) Less culpability means that DP doesn't serve retribution (2) deterrence only works on premeditation, and Ds with ID often act impulsively and have trouble controlling conduct. b. Increases risk that DP will be applied when it shouldn't/wrongful executions/poor reliability of executions. (1) Ds are impaired + can't effectively present ME (2) can't assist counsel (3) false confessions (4) don't make for good witnesses (5) demeanor created by some disability may be seen as lack of remorse (NOTE: Garvey study tells us this *really* matters (6) ID as MF could be held against them bc increase risk of future dangerousness (Penry-problematic).

INDIVIDUALIZED SENTENCING: Options for Reconciling Tension

1. Eliminate DP. (Blackmun in Callins v. Collins (1994)) 2. Keep Furman and abandon W/L/E. Scalia in Walton v. Arizona (1990, (restates in Collins). 3. Keep Woodson, Locket, Eddings and abandon Furman. No one officially supports this, but it's functionally Court's stance: Pillar 1 is so weak (increasingly there's aggravating creep where 90% of murderers are death eligible) AND ME is so strong/inadequate individualism is such a robust 8A protection. 4. Give juries complete discretion. Harlan in McGautha v. California (1971). 5. Reconcile Furman and Woodson. Court's official stance: limit discretion in determining eligibility for DP, but don't limit in determining whether to be merciful at sentencing. a. Justification: Killing an innocent (i.e. someone not eligible for DP) is deeply wrong. Sparing someone who is eligible for DP isn't as wrong. 6. Perform real narrowing. Stevens is in this camp; thinks we should only make eligible the worst of the worst.

Enmund White majority

1. DP is disproportionate if neither took a life, attempted to take a life, or intended/anticipated taking a life. T1 Proportionality Test: a. Objective factors i. Legislatures: 42-8. Court has to work hard here; 8 states allow DP for situations exactly like Enmund but another 9 (so 1/3rd in total) allow DP for FM generally. So categorized not by offense (FM), which is what did in Coker, but by situations exactly like the D (non-triggerman FM). ii. Jury Sentencing: 6 out of 362 executed since 1954 (all in 1955) were non-triggermen (NOTE: not clear why they picked 1954). iii. Suggests that how often prosecutors sought DP would be relevant, a low # can speak to ESD (NOTE: other side would want to say low # can explain why the number of convictions so low). b. Own judgment i. Robbery isn't equal to murder. (1) By definition, doesn't include death or serious injury of another person (2) not a lot of people typically killed during them. ii. Won't serve ends of DP—no deterrence + no retribution. No intent to kill ≠ no culpability. 1. "There is no basis in experience for the notion that death so frequently occurs in the course of a felony for which killing is not an essential ingredient that the death penalty should be considered as a justifiable deterrent to the felony itself." 2. "Putting Enmund to death to avenge two killings that he did not commit and had no intention of committing or causing does not measurably contribute to the retributive end of ensuring that the criminal gets his just deserts." 3. NOTE: adding deterrence to possible penological purposes. Note on Cabana v. Bullock (1986) (B465) TW: Reaffirms Enmund but says appellate courts can be one to find that D in fact either took a life, attempted to take a life, or intended/anticipated that a life would be taken.

Furman: Marhsall concurrence

1. DP is per se C+U for two independent reasons: (1) excessive and serves no legislative purpose and (2) society abhors it. a. DP is excessive and serves no valid legislative purpose. There are six possible purposes for DP: retribution, deterrence, prevention of recidivism, encouragement of guilty pleas and confessions, eugenics, and economy. None of these are valid purposes: retribution is just vengeance and should never justify a punishment (the whole purpose of 8A is to insulate ourselves from our animal instincts) and there's no clear deterrent value. b. Society abhors DP (Marshall Hypothesis). Even though this isn't reflected in state laws and public polling, people would find DP barbarously cruel if they knew all the information available, including lack of deterrence, how it's arbitrarily administered, disproportionately against minorities, etc. i. NOTE: Steiker doesn't find his argument convincing, and social science doesn't really back it up. But interestingly it appears to hold true for SCOTUS Justices—the more DP cases they deal with, the more likely they are to flip against it.

Furman: Brennan concurrence

1. DP per se C+U bc violates 4 principles inherent in 8A: a. Punishment must not be so severe as to be degrading to the dignity of human beings. But no DP method guarantees painless death + death is different and final + deliberate extinguishment of human life is degrading to human dignity. b. Government must not arbitrarily inflict a severe punishment. But we impose DP too infrequently for it not to be arbitrary. i. "When the punishment of death is inflicted in a trivial number of the cases in which it is legally available, the conclusion is virtually inescapable that it is being inflicted arbitrarily. Indeed, it smacks of little more than a lottery system." c. Punishment must not be unacceptable to contemporary society. But we impose DP so infrequently that "rejection could hardly be more complete without becoming absolute." d. Punishment must not be excessive/must serve a penal purpose. But doesn't serve either function of CrimLaw: (1) no on retribution bc most capital criminals don't get DP (2) no on deterrence bc risk of getting DP too small.

Godfrey: Marshall, Brennan concurrence

1. DP per se C+U. "I continue to believe that the death penalty is in all circumstances cruel and unusual punishment forbidden by the 8A and 14A." 2. Agrees that b7 is too vague and thus leads to arbitrariness, but disagrees about saving the statute. (1) Appellate courts are incapable of guaranteeing objectivity; some evidence: since Gregg, SCOTUS has reversed SCTs many times for allowing undue DP discretion and thus arbitrariness (2) GA SCT has messed up its narrowing construction of b7 in other cases (3) most fundamentally, it's impossible to create standards that eliminate unconstitutional arbitrariness (NOTE: cites Harlan's "beyond present human ability" line from McGautha even though both him and Brennan dissented there!).

Furman: Douglas concurrence

1. DP unconstitutional as applied 2. Focuses on discriminatory effects of DP—argues that it is "incontestable" that a penalty should be considered 8A "unusual" if it is administered arbitrarily or discriminatorily a. Agrees there is no proof of purposeful discrimination, but that it is clear that DP is disproportionality imposed on poor, black defendants i. Racial disparity is so stark and has been trending for so long, that even if we can't prove disparities are because of race, we should be suspicious b. Discriminatory effects matter—DP is unconstitutional in operation i. A law stating that anymore making more than 50,000 would be exempt from DP would be unconstitutional; so should a law that reaches that same result in practice ii. We have effectively created a caste system c. A system without standards allows for discrimination i. States he will leave issue of constitutionality of mandatory DP untouched ii. "People live or die, dependent on the whim of one man or 12"

Lowenfield Marshall dissent

1. Double-dipping makes it easier to impose DP. (a) At guilt phase, jury instructed not to consider penalties, so more likely to convict for death-eligible charge than would if knew the duplicated factors meant they were substantially increasing chance of DP (b) at sentencing phase, weight of responsibility is off jury bc already found those AFs BRD at guilt phase, so easy to impose DP + not feel responsible. a. NOTE: In some other states, like TX, jury is instructed at the guilt phase that a certain finding would make D eligible for the DP. b. NOTE: Similar to the argument Marshall will make in Caldwell 2. Double-dipping does not channel discretion. You can't channel at the guilt phase when jury isn't even thinking about DP. 3. Narrowing requirement not an end unto itself; specifically about channeling sentencer discretion. a. "The narrowing requirement is meant to channel the discretion of the sentencer ... By [removing narrowing function from sentencing phase], the Court reduces it to a mechanical formality entirely unrelated to the choice between life and death." b. NOTE: the killer counter-argument is that Stephens allows us to do exactly this.

Payne O'connor concurrence

1. Evidence about full extent of crime is relevant to sentencing, and thus shouldn't be treated differently from other relevant evidence. 8A doesn't bar such evidence bc there's no societal consensus against allowing it. 2. Court's ruling doesn't require states to allow it; Court only says USC doesn't bar it per se. 3. Although there's risk that allowing VIE will be overly prejudicial, other procedural checks, like probative/prejudicial test, can solve that.

Herrera Blackmun dissent

1. Executing an innocent violates 8A. (a) Violates ESD (b) it's the needless imposition of pain and suffering (Furman) and is grossly out of proportion with the crime (Coker) (c) violates heightened reliability requirements (Beck). a. NOTE: he cites to Beck as proof that 8A requires heightened reliability at the guilt stage as well (bc Beck was about proper protections at guilt phase). 2. Proposed standard: D must show that he probably is innocent. (a) Shows deference to TC's findings (b) shifts presumption of innocence and imposes a higher standard of review than just raising doubt about D's guilt. a. NOTE: Blackmun recognizes state interest so wants to create a fair standard.

Flowers Alito concurrence

1. Flowers VI was "a highly unusual case," and stated that were it not for its unique circumstances — namely the choice "for the case to be tried once again by the same prosecutor in Montgomery County" he would have affirmed the Mississippi Supreme Court's decision.

Ford, Panetti, Washington, and Penry

1. Ford v. Wainwright (1986): no DP for insane inmate. 2. Panetti v. Quarterman (2007): (A) standard for whether D sane enough to be executed: must (i) be aware of his impending execution + (ii) the reason for it + (iii) some consideration of the rationality of D's awareness (B) due process requires that state provide impartial officer or board that can receive evidence and argument from prisoner's counsel, including expert psychiatric evidence. 3. Washington v. Harper (1990): prisons can force inmates to take psychiatric drugs provided procedures to ensure decision isn't arbitrary or erroneous. 4. Penry v. Lynaugh (1989): 8A does not prevent DP for ID: (A) no sufficient consensus against + (B) insanity defense already protects them + (C) ID already MF.

Earley, "Why I Can No Longer Support the Death Penalty"

1. Former VA State Senator, AG, and Republican candidate for governor says that he supported DP while in office for political reasons but learned that innocents can easily be wrongly sentenced/executed

Guided discretion: notes and background

1. Furman (1972) identified problem with DP as being practiced was that it was arbitrary in its application. a. DP applied to a broad variety of cases, but actually used in very few cases 2. The identification of AFs solved this arbitrariness problem in two ways: a. Narrowing the broad class of crimes eligible for DP to those that are the very worst b. Guiding juror discretion to deciding whether DP applies by telling them what is relevant or important to consider (though in Stephens, Court says this isn't needed). 3. What DON'T McGautha, Furman and Gregg discuss that we would expect today? a. Methods of execution b. Innocence/fallibility/wrongful convictions. Now we have irrefutable proof of such occurrences c. Race discrimination/disparate impact. i. While Douglas discusses this a bit in Furman, the discussion would be more explicit—judges would say "racism" and not use euphemisms like "wanton and freakish" (Stewart in Furman) ii. Would use multiple regression analysis to show race really is a factor d. Originalist analysis of the USC. Though Black was there for McGautha + much of that argument was about what "C+U" means. e. Worldwide abolition of DP might make US DP more "unusual." That we are alone in the West would be part of the discussion.

Godfrey: Stewart plurality

1. GA's AF is too vague bc it doesn't *narrow* the class of crimes eligible for DP, thus leading to arbitrariness. Furman + Gregg said that DP can't be imposed in an arbitrary manner. Thus the state must define the standards to use in administering DP to be clear + objective so that they provide specific + detailed guidance to both prevent unchanneled discretion and so that there can be rational review of the process to impose DP. a. NOTE: had just upheld this statute 4 years earlier! 2. However, statute can be saved if (a) either jury receives instruction w/ a narrowing construction or (b) SCT itself construes narrowly and applies that definition consistently on review. NOTE: suggests that b7 can be saved if the following definition is used: "only if the offense involved torture and aggravated battery, manifested by evidence of serious physical abuse of the victim before death."

Payne Stevens dissent

1. Goes against precedent. Precedent dictates that any decision to impose DP can't just appeal to sympathies or emotions of the jurors; rather it must be based solely on evidence that tends to inform jury about the circumstances of the offense and the character/background of D. 2. VIE not needed to balance D's ME. (a) Prosecution can always present AE and dispute the ME itself (b) regardless, no balance is required—we must protect D against overwhelming power of state (why we have BRD standard). 3. This is actually uncommon in CrimLaw. It's true that harm caused by crime is considered in sentencing, but (i) only foreseeable harm is considered and (ii) only if this consideration is sanctioned by legislature prior to commission of the crime (aka in the definition of the crime, and thus will be applied the same to each D). a. Neither is true with VIE. (i) D doesn't know everything about the V AND (ii) legislature has provided no guidance on use of VIE. 4. So what if Ds know general impact of their crimes? (addressing Souter's foreseeability claim. Jurors know general impact too, so no VIE needed.

Caldwell O'Connor concurrence

1. If state concludes that reliability of its sentencing procedure is enhanced by accurately instructing jurors on the sentencing procedure, that's fine. (NOTE: Marshall would prohibit any discussion of appellate review).

Payne: Rehnquist majority

1. No 8A bar to VIE (overruling Booth v. Maryland (1987) and South Carolina v. Gathers (1989)). A state may properly conclude that for jury to meaningfully assess D's moral culpability, at sentencing it should have before it evidence of specific harm caused by D. a. It isn't just D's character that matters; the harm caused matters too. That's why we punish bad luck in the law; accidentally hitting someone while speeding is a homicide, but speeding itself isn't. 2. There's double standard—if we get to consider D as individual, we should consider V as individual too a. "The State should be able to offer a quick glimpse of the life which the D chose to extinguish or demonstrate the loss to the victim's family and to society which has resulted from the D's homicide."1 3. NOTE: Left in place Booth's bar against V statements on what punishment D should get/V's opinion of crime. Neither side can use this regardless of whether V's family wants DP or not.

Coker White plurality

1. Imposition of DP for rape of adult woman is C+U disproportionate. Under Gregg, punishment is C+U if it (A) makes no measurable contribution to acceptable goals of punishment (and is thus nothing more than purposeless and needless imposition of pain + suffering) OR (B) is grossly out of proportion to the severity of the crime. We determine this with 2 part test: a. "Objective" factors i. Legislatures: 50-1! Pre-Furman, 16 states + FG had DP for rape. Post-Furman, only 3 states have enacted statutes with DP for rape, and 2 of those were then struck down for being automatic DP and then didn't include rape in next statute—so GA is only state left. 1. NOTE: Many states dropped DP for rape bc they moved to automatic DP schemes after Furman, and you just can't have automatic DP for rape given how many rapes happen + it would mean many whites executed. 2. NOTE: Why is it meaningful that there's a lack of statutes allowing DP for rape? Why doesn't the "this is just a reaction to Furman as a way to stay safe" argument from Woodson (just a year before) prevail instead? ii. Jury sentencing: 6/63 juries in GA have returned DP since 1973 (63 = number of rape cases the SCT has reviewed in that period). (NOTE: this isn't that small, it's 10%! And maybe just shows they reserve it for worst cases). b. Court's "own judgment" about acceptability of DP for rape of adult. Compares rape to murder (and not to the DP, interestingly) and finds the two crimes retributively incomparable bc in rape, V isn't dead. i. "Rape is without a doubt deserving of serious punishment; but in terms of moral depravity and of the injury to the person and to the public, it does not compare with murder, which does involve the unjustified taking of human life." ii. "Life is over for the victim of the murderer; for the rape victim, life may not be nearly so happy as it was, but it is not over and it is normally not beyond repair..." iii. NOTE: Retribution is only theory of punishment discussed.

Harmelin Kennedy plurality

1. In non-DP cases, 8A doesn't require "strict proportionality" between crime and sentence— punishment just can't be "grossly disproportionate" to crime. This is a narrow requirement due to importance of legislative primacy (legislature should be able to decide which purposes of punishment it should pursue). 2. Announces 3-part test for non-DP proportionality (based on Powell's test in Solem): a. Factor 1 = whether punishment is "grossly disproportionate" to gravity of offense. This is threshold (unlike in Powell test), and it has to really slap you in the face. If not, STOP—it's proportional. b. Factor 2 = review penalties imposed within same Jx for similar crimes. c. Factor 3 = review penalties imposed in other Jx for same offense. 3. Mandatory LWOP for smuggling large amount of cocaine not disproportionate. Drug crimes can have severe effects on society, so stopping at Factor 1. a. NOTE: Notice how not limiting harm to what was directly caused by D's actions.

Kennedy Alito dissent

1. Is 8A now a one-way ratchet—is it even possible to find pro-DP trends among the states? How would you prove them?: (i) Even if there's a trend, D can stop it in its tracks by challenging it early when only 1 or 2 states have it—SCOTUS will go boom, unconstitutional! (ii) You need to have state laws, jury verdicts, execution counts—but how do you get there? a. NOTE: good point, you almost need collusion among states by all passing at same time.

Federal Habeas Checklist (DO EVERY STEP. NOT MUTUALLY EXCLUSIVE)

1. Is petitioner asking for a new rule under Teague? If so, does the claim meet one of the two Teague exceptions? i. Primary, private individual conduct/a class of Ds? ii. Watershed rule of CrimPro? (null set) 2. Has there been a state procedural default under Sykes? If so, does the claim meet one of two Sykes exceptions? i. Cause and Prejudice? ii. FMJ? (AI of crime or AI of DP) 3. Is petitioner's claim substantively barred? Stone (4A claims barred) Herrera (freestanding AI claims barred, with narrow Troy Davis exception) 4. Is petitioner's claim, under 2244, successive or abusive or barred by 1-yr SOL? 5. Evaluate claim under Section 2254 (Williams; Harrington; Pinholster, etc.) Section 2254(d) is standard for state decisions on the merits (Williams; Richter; Pinholster; Greene) Section 2254(e) is the standard where there was NOT a state decision on the merits (Pinholster; Brown)

ACTUAL INNOCENCE: doctrine

1. It appears that federal habeas courts may entertain freestanding claims of AI in exceptional cases. Question left open by Herrera, but implicitly answered when SCOTUS asserted Jx in Troy Davis. a. Requirements for freestanding AI claim on habeas (assumed right from Herrera): i. Truly persuasive showing of innocence, AND ii. Exhaustion of state avenues to exoneration (NOTE: We don't know what this really means; Steiker assumes = you have an execution scheduled and you have no additional options at that moment). 2. An AI claim is a key to unlock the door (gateway claim) to federal habeas. (Herrera) 3. Statistical risk of innocence does not alone deny individual Ds due process nor violate 8A (Quinones, 2d Cir) 4. It's constitutional for DP statutes to establish a presumption in favor of death by directing imposition of CP when AFs and MFs are in equipoise. (Kansas v. Marsh) 5. Souter's mini-Blackmun moment: we should have a preference against DP given evidence that innocents are being executed. (Marsh, dissenting) 6. Stevens' full-Blackmun moment: Risk of executing innocent Ds can be entirely eliminated only by treating any penalty more severe than LWOP as constitutionally excessive (Baze, concurring)

ACTUAL INNOCENCE B&N

1. Late 90's/early 00s = innocence revolution w/ advanced DNA technology. NOTE: Given the current prevalence of the technology, DNA exonerations will be fewer going forward, which hurts this push—it will instead be used at the trial for the 10% of cases with DNA evidence. 2. Scalia in Marsh says not many innocents being sentenced to DP, but in fact depends on the standard you use. Options: a. Turned out not to be guilty BRD. Acquittal, clemency, win an appeal and prosecution doesn't re-argue bc stale evidence, etc. But doesn't mean innocent. b. Let off DR w/ some evidence of innocence. Liberals say that we know of 160 of these—but even this is a broad standard. c. Let off DR w/strong evidence of innocence. People like Scalia would say that this is the real measure, and only 40-50 such people, and we if compare that to 8000 sentences total, very low rate. NOTE: But why is that the right numerator? We don't have DNA tests on all of those 8000; DNA only available in 10% of cases. (FUN WITH NUMBERS).

Stone v. Powell, White dissent

1. No way Congress intended for habeas's availability to differ depending on what your constitutional violation is. Example = 2 similarly situated Ds get convicted on 4A exclusionary evidence, one gets cert. grant in C1 and SCOTUS reverses; one gets cert denied and has no more avenue to fix his claim. No way USC intended this result!

INDIVIDUALIZED SENTENCING doctrine

1. Mandatory DP = unconstitutional. Bc (1) it's contrary to ESD, doesn't address Furman problem of unbridled, unreviewable discretion bc there will be jury nullification (3) DID, thus requires more-than-usual individualization. (Woodson) 2. DP statute must allow sentencer/be vehicle to fully consider as ME any aspect of D's character, background, & circumstances of offense (Lockett) (NOTE: Why these? Because ultimately tied to culpability). a. This means statute can't restrict consideration of anything about character/background/circumstances i. This does not include (a) residual doubt (b) effects of execution on D's family, V's background (statute not required to allow but can be (Payne), (c) if V's family against the DP, (d) patterns of distribution of DP (e.g. race), (e) painfulness of DP. b. Also means statute can't be "Penry-Problematic": Under the statute's factors, ME can't cut against D (for example, if D's ID makes the murder less deliberate under a "Deliberateness" factor but also makes him more dangerous under a "Future Dangerousness" factor. 3. Sentencer must fully consider all relevant ME, though it can choose how much weight to assign. (Eddings)

Woodson Dissent (Rehnquist + White, Burger)

1. Mandatory DP does not violate ESD. a. Legislatures. States haven't turned away from mandatory DP as imposed in this NC statute: (a) Even if states turned away from mandatory DP in wide range of cases, no evidence of any objection to its use in relatively narrow case of 1st degree murder (b) post-Furman statutes prove that state legislatures are fine with mandatory DP. b. Juries. Fact that juries often don't convict under a mandatory DP statute doesn't prove anything bc there only needs to be one juror to ruin unanimity. 2. Mandatory DP is fine per Furman. (a) It is no more arbitrary than other statutes we approve, specifically the GA statute approved in Gregg (and upheld in Stephens) that gives unfettered discretion once you find an AF (b) Furman "freakishness" was in part bc too few DPs were being imposed, and this would fix that. 3. Plurality's individual review requirement is a departure from 8A jurisprudence. (a) Even if DID bc it's irrevocable, doesn't follow that we need to consider individual circumstances—irrevocability problem would instead support laws requiring careful review of trial fairness, accuracy of the proceeding, etc. (b) here, D clearly guilty of 1st degree murder, and we know sentencing him does not violate 8A—so why does doing so without individualized sentencing violate 8A?

Steiker & Steiker—Entrenchment and/or Destabilization: 1

1. Modern Reforms (previously thought by Steikers to be legitimizing DP without actually reforming anything) may in fact by leading us towards abolition? a. DP now subject to extensive legal regulation i. Extensive legal regulation has increased the cost of DP to make it cost ineffective b. Specialized defense bar i. Better at slowing down executions c. Significant gap between DP sentence and actual execution i. More procedural rules à a longer time between sentencing and actual execution ii. Undercut deterrence and retribution arguments in favor of DP. After spending decades on death row the person executed is often different from the person convicted originally iii. Creates a new moral problem: now death row inmates functionally get two punishments: execution and incarceration under severe conditions (usually solitary) d. Focus of capital trials now on mitigating rather than guilt/innocence i. Increased the costs of capital trials—all the shit you need to do to get mitigating evidence ii. Robust individualization doesn't fit easily with traditional moral defenses of the death penalty 1. Eye for an eye argument depends on punishing the crime, not the individual, but this new doctrine of mitigation flipped that paradigm iii. Presenting mitigating evidence was pretty successful and the DP became less common 1. DP started being viewed as not the expected result. e. LWOP i. Single most important causal factor in the decline of death sentencing over the past 15 years ii. It ameliorates concerns about recidivism/future dangerousness and provides cover to prosecutors who forgo the DP

Pre-1991 Texas Statute

1. Narrows eligibility with a limited list of capital crimes (similar to LA in Lowenfield (1988)). (i) Murder of police or a fireman (ii) murder committed for remuneration (iii) murder committed while escaping or attempting to escape from a penal institution (iv) murder committed by a prison inmate when V is a prison employee. 2. At sentencing, jury answers 3 "Special Issue" questions. DP (automatically) if, and only if, all 3 are yes BRD. (i) Deliberateness: Whether conduct of D was committed deliberately and with reasonable expectation that death of the deceased or another would result (ii) Future Danger: Whether there's probability that D would commit acts of violence that would constitute a continuing threat to society (iii) Provocation: If raised by the evidence, whether conduct of D in killing V was unreasonable in response to provocation by V (broader than standard of provocation to reduce to manslaughter). a. NOTE: Future Danger ((b)(ii)) is the crucial question in most cases. Hard call to make; even social scientists are bad at such predictions. Tony Amsterdam (LDF lawyer in all the '76 cases) emphasized the arbitrariness that can seep into a judgment of future dangerousness. i. Deliberateness ((b)(i)) is easy if murder capital (intentional killing), and Provocation (b)(iii) almost never comes up.

Federal Habeas: New Rules and Retroactivity

1. New constitutional rules are NOT retroactively available to cases that become final before the new rule was announced, (Teague), unless the rule (1) decriminalizes "primary, private individual conduct" (Roper; Lawrence; Atkins; Roe; Penry; Montgomery) OR (2) is a bedrock rule of criminal procedure (Gideon) OR (3) (very rare) SCOTUS simply declares it to be retroactive. a. Under Teague, a rule is new if it "is not dictated by precedent." Any rule dictated by precedent is outside the scope of Teague. (Penry was dictated by precedent; Caldwell was not). b. But any new SCOTUS rule, such as the ruling in Batson, applies retroactively to all similar cases, state or federal, pending on direct review or not yet final. c. But Teague does NOT prevent the prosecution from asking for and benefiting from new law on federal habeas bc D in that case does not have same interest in old law as the states do in preserving past convictions (states will be asking for a new rule to just that). Rationale for Teague is state interest, so of course states can ask for a new rule. d. Teague is for federal habeas (C3) review—states can have their own retroactivity rules in C2.

Tison O'Connor Majority

1. No, foreseeability not enough to establish intent to kill. 2. But you don't need intent—DP here is proportional. Reckless indifference to human life + major involvement = culpability = DP proportional. This trims Enmund. Reasons Enmund doesn't control: a. Brothers much more involved in the crime. Helping inmates escape with cooler of guns, helped them hide, ended up in shootout w/cops and even shot at them, were physically present at the shooting. b. There was reckless indifference to human life. Anytime you use guns to help someone escape out of jail (especially bc dad had already killed someone in past) there's a high probability someone will get killed, and thus there was extreme recklessness "implicit in knowingly engaging in criminal activities known to carry a grave risk of death." c. Applies T1 Proportionality Test: i. Objective factors 1. Legislatures: 11-39. Only 11 states ban DP for Ds in FM cases where Ds took a major role in the felony + the court could infer extreme recklessness. (NOTE: the math here is really tortured: 4 + 2 + 6 + 6 + 3 = 21). 2. Juries: haven't been nearly so reluctant to impose DP here as they are for FM simpliciter (NOTE: this isn't a number!) ii. Own judgment 1. Intent to kill isn't an effective standard for identifying the most culpable and dangerous murderers. Some people with intent to kill aren't liable (self-defense) + some people who don't intend to kill are highly culpable (torturer who accidently kills V). NOTE: No mention of retribution or deterrence. 2. NOTE: Reckless indifference to human life is standard for Depraved Heart Murder; means you just don't care whether someone gets killed despite knowing there's chance of murder.

Gardner Stevens plurality

1. Not OK—violates DPC. (1) For DP sentencing, DPC requires even more process in the Matthews v. Eldridge test; we can tell bc clause is phrased to represent hierarchy of interests: "life, liberty, property"—life most important (2) thus, sentencing judge cannot generally withhold information in a PSI report from counsel —doing so would violate DPC by not allowing counsel to rebut that evidence (3) counsel doesn't have to first request the confidential info. 2. Distinguished/overrules Williams v. New York (1949), which held confidential PSI reports were OK, bc of evolving standards of procedural decency. NOTE: weird merger of 8A + 14A. a. Capital sentencing procedures change according to evolving standards of procedural decency. Two ways: (a) five Justices now expressly recognize that DID (b) we've held that sentencing procedures, not just trial itself, must satisfy DPC. 3. Leaves door open for judge to withhold information if there's compelling need, but then that confidential information would need to be included in the record for appeal. Otherwise you'd undermine the viability of appellate review and create the same A+C concerns raised in Furman. NOTE: Why is this under DPC? Maybe (1) bc the DPC text, through its hierarchy, already says DID (2) 8A looks at prevailing practice/consensus, but in Williams (1949) SCOTUS had said PSI reports were fine for issuing DP and everyone was doing it based on that opinion.

PROPORTIONALITY doctrine

1. Not rapists of adults (Coker); not rapists of children (Kennedy); not interpersonal crimes other than murder (Kennedy) 2. Not Ds who did not kill, attempt to kill, or intend to kill (Enmund) i. But yes if D acted w/ reckless indifference + major role in felony (Tison) 3. Not D who had ID at time of offense (Atkins, overturning that portion of Penry). 4. Juveniles i. No DP (Roper) ii. No JLWOP for non-homicidal offenders (Graham) iii. No mandatory JLWOP for homicides (Miller) 5. How do you know whether DP is appropriate for your D? You do one of the two proportionality tests!

Kennedy, Kennedy majority

1. Objective factors a. Legislatures: 44-6. Fewer states allow than in Roper, Atkins, or Enmund. i. NOTE: However, the 6 are recent, and in 5 other states there's pending legislation to allow DP for child rape—doesn't that say something about the trend/direction of the change (Atkins)? Court says we can't count pending legislation, that's counting chickens before they hatch, anything could happen. b. Jury sentencing/executions: none since 1963/1964. No executions in states for rape of adult or child since 1964; no executions for non-homicide offenses since 1963. 2. Own judgment a. Only way to resolve central DP tension is to limit class of eligible crimes. Tension b/w Pillars I + II and there hasn't been unifying principle. Bc our DP doctrine has this issue, last thing we should do is substantially grow its application: (1) many children are raped each year (5700+); this is too big of a pool to be able to find the worst of the worst (2) Furman narrowing standards won't help bc upsetting facts of crime would likely overwhelm jury's judgment. i. NOTE: Justice Kennedy needs this argument bc Enmund/Roper lessened culpability argument doesn't apply here. b. Retribution not served. i. Inherent risk of over-punishment given nature of crime and severity of the punishment. ii. Testifying hurts child V by making them relive the trauma over & over in appeals. iii. High risk of wrongful execution given children involved. (i) Children's testimony is notoriously unreliable bc susceptible to manipulation + leading questions (ii) esp. problematic in context of rape since V's testimony is primary evidence (iii) esp. problematic for sentencing since details of the crime's brutality are key. c. Deterrence not served. (i) It incentives killing child rape Vs bc you're going to get DP anyway (ii) might disincentivize reporting, especially in cases where family member is the rapist and they don't want him killed. 3. NOTE: then Justice Kennedy says something extraordinary: DP is disproportionate for any interpersonal crime (so not crimes against state like treason) that doesn't involve a death (since 1976, no one had been executed for non-homicide). a. "As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim's life was not taken."

Flowers v. Mississippi: Kavanaugh majority

1. Outlined Batson: once a prima facie case of discrimination has been shown by a defendant, the state must provide race-neutral reasons for its peremptory strikes. The trail judge must determine whether the prosecutor's stated reasons were the actual reasons or instead were a pretext for discrimination a. Factors the trial judge should consider in evaluating whether racial discrimination: i. Statistical evidence about the π's use of peremptory strikes against black prospective jurors compared to white jurors ii. Evidence of a π's disparate questioning iii. Side-by-side comparison of struck black and seated white jurors iv. A π's misrepresentations of the record when defending the strikes v. Relevant history of the state's peremptory strikes in past cases vi. Other relevant circumstances b. The job of enforcing rests with trial judges i. Must consider the π's race-neutral explanations in light of all the relevant facts and circumstances and in light of the arguments of the parties ii. Trial judge's assessment of the π's credibility is often important c. Appellate courts should give deference to the trial court

McGuatha: Brennan dissent

1. Standardless discretion issue clearly violates due process. Due process requires that state protect individuals against arbitrary exercise of state power by explicitly articulating fundamental policy choices underlying any use of state power. This is connected to due process requirement for appellate review/means by which arbitrary action can be reviewed and corrected (which can't happen if no standards). 2. You can't say it's impossible to make standards. States haven't even tried making them! And MPC was able to. a. "Unlike the Court, I do not believe that the legislatures of the 50 States are so devoid of wisdom and the power of rational thought that they are unable to face the problem of capital punishment directly, and to determine for themselves the criteria under which convicted capital felons should be chosen to live or die."

INDIVIDUALIZED SENTENCING: Pillars 1+2 of Constitutionalization of the DP

1. Pillar I = guided discretion (Furman). But SCOTUS has scaled back its ambitions regarding purpose of guiding factors—these factors must narrow the class of the DP eligible, but afterward you can return to Furman-style discretion. 2. Pillar II = individualized sentencing (Woodson, Locket, Eddings). SCOTUS backed into this pillar/was self-inflicted wound. 10 of 35 states respond to Furman with mandatory DP. In Woodson, Court could've said mandatory DP will push the unconstitutional discretion elsewhere in criminal justice system + so it also violates Furman. But SCOTUS went further and grounded its decision in an 8A right to be considered as an individual, talked about how mandatory DP "treats all persons convicted of a designated offense not as uniquely individual human beings, but as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the penalty of death." a. By phrasing Woodson this way, they unleashed Lockett and Eddings as to how exactly you must provide individualized sentencing through ME doctrine. 3. ME has been much more effective in getting DP sentences overturned than narrowing requirements. Most ongoing litigation is about ME, not about narrowing.

THE PROSECUTOR: doctrine

1. Prosecutors can introduce evidence of D's associations/beliefs, so long as relevant to motive of the crime or an AF (and are thus not merely abstract beliefs) (Dawson). a. NOTE: double standard; D can introduce his own abstract beliefs (e.g. has become religious) whenever he wants to mitigate. b. NOTE: Unclear, but we think prosecutor can introduce abstract beliefs to rebut D's presented abstract beliefs 2. No 8A bar to prosecutors introducing VIE. Bc it's critical to assessing D's blameworthiness (Payne, overturning Booth and Gathers). a. Open question how much VIE is allowed. It's clear that "a glimpse" into life of V or demonstrating "the loss to the V's family and to society which has resulted" is allowed, but VIE may still be challengeable in some contexts. i. Stevens and Souter dissented from denial of cert in 2008 about a case with extensive video VIE—narrated by V's mother, soft music, etc. Stevens + Souter: this is out of hand, not a "glimpse." b. V's family's opinions about what the D deserves as a sentence remains unconstitutional under Booth. (Key piece of Booth NOT overruled by Payne). c. Various states place additional restrictions on VIE: 1. MD + many other states says only in written form 2. NJ says only one family member may testify 3. IN says VIE must be connected to ME 4. Other states suggest curative instructions to tell jury not to weigh lives + that lack of VIE should not be held against V 5. Changing standard to require VIE be super-probative d. VIE is incredibly powerful. One study: 62.5% who see VIE impose DP; only 17% who don't see it!

Harmelin White dissent

1. Scalia is wrong; 8A requires proportionality review. (A) Proportionality is inherent in "no excessive fines" portion of C+U clause (B) Regardless, our precedents ended up reading it in (C) if no proportionality, no solution for LWOP for a parking ticket problem. a. NOTE: Text of 8A C+U clause: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." 2. Justice Kennedy is wrong; you can't determine penalty is proportional just by looking at Factor 1. Only Factors 2 +3 provide objectivity, bc they ask judge to compare case to other situations. 3. Application of all 3 factors compels conclusion that penalty in this case is unconstitutionally disproportionate to the crime.

Victim Impact Evidence (VIE)

1. Sentencing strategies. D narrative always about lack of culpability; prosecution narrative about harm. 2. Main stock in trade: justice for the V. So VIE about harm + suffering. Some of that will just be photos of crime scene + medical examiner testimony about suffering. 3. 1970s and 80s had big V's Rights Movement. Included push to allow Vs to speak at sentencing hearings. a. Booth (1987): Court decides 5-4 that 8A barred states from introducing VIE in capital cases. (i) Not relevant to D's blameworthiness/decision to kill (bc these are unforeseeable factors) (ii) worry about what kind of Vs most valued (NOTE: Garvey study (see below) helps vindicate this concern.) b. South Carolina v. Gathers (1989): Upholds Booth. 4. No one has ever suggested there's constitutional reason to bar VIE in noncapital cases. So why did the Court ban it for five years? Worried that not tied to culpability. (i) Concern for arbitrariness; do loved people count more than people without VIE? (ii) worried that reason will be trumped by passion. 5. Under Booth/Gathers, evidence has to be retributively relevant, which means what D could foresee. So torture, inflicting suffering, if D knew V was pregnant = all OK. But not if V was pregnant but D didn't know. a. Payne v. Tennessee (1991) (Brennan + Powell replaced by Souter + Kennedy): 8A does NOT bar VIE. Motivated by need for retributivism. NOTE: 8A still bars VIE on what punishment the family wants (neither side can use this).

Tuilapea stevens concurrence

1. Stephens proves that failure to characterize factors such as age as either AFs or MFs is constitutional. Stephens upheld sentence even though an MF was incorrectly labeled an AF. 2. All that is required is a narrowing function as required by Lowenfield v. Phelps. 3. This statute is probably better than threshold statutes, which narrow and then just allow you to do anything you want, and the factors don't really relate to a juror's biases. Pushing back on Blackmun's point about racism in his dissent.

HEIGHTENED RELIABILITY doctrine

1. TC judges in capital cases cannot rely on confidential portions of PSI reports, except in rare scenarios (and must still provide whole report to appellate court). (Gardner (1977)) 2. Jury must be instructed on lesser-included non-CP offenses (Beck (1980)). a. But not all lesser included offenses—state gets to define; for example, FM Ds don't have a right to a robbery instruction (Schad). 3. Cannot inaccurately diminish jury responsibility by miseducating them regarding post-sentencing procedure (Caldwell (1985)) a. NOTE: Interesting Q as to what is "inaccurate": some say that mentioning GA has proportionality review system w/o mentioning it almost never reverses would be so misleading as to be inaccurate. 4. When state places Future Dangerousness at issue, due process allows you to rebut by saying that D is ineligible for parole under state law (Simmons)(1994) a. NOTE: Kelly v. SC (2002) is even more progressive: (1) If the state just uses the word "dangerous," that's enough (2) if the evidence suggests dangerousness, that's enough (3) came close to requiring judge to say it in these instances (whereas now it's just that D counsel allowed to say it).

Penry O'connor majority

1. TX statute not OK since turns his ME into a double-edged sword. a. Lockett and Eddings require individuality/that sentence be related to personal culpability/that jury express "reasoned moral response to the D's background, character, and crime." But under this statute, the ID and history of abuse would make the D *more* likely to be a Future Danger under (b)(ii) even though it makes him less culpable under Deliberateness (b)(i). 2. TX statute also not OK bc the Deliberateness (b)(i) question does not give sentencers sufficient latitude to consider everything related to culpability. What if jurors think the crime was done deliberately, but still want to avoid imposing DP? Defense urged jury to just answer NO to #1 out of fairness if they felt this way. But this is an insufficient solution. 3. Discretion to impose DP must be narrowed in terms of factors (AFs) that allow imposition of DP, but can't need to be narrowed in terms of factors (MFs) that prevent imposition of the DP. a. NOTE: explicit double standard. 4. NOTE: MFs that might act as double-edged sword under a statute are called "Penry Problematic."

Baude, "Last Chance on Death Row"

1. There are problems with courts recognizing an accutal innocence right. a. Would damage principle of judicial finality. At some point, legal disputes must be settled and the losing side must accept authority of the court. Otherwise, legal system would be pointless. b. Judges shouldn't decide limits of their own power; they can only hear cases that are within their purview. Allowing them to create this new right to review would implicitly mean they could determine what cases they could hear and thus the scope of their power—thus, if we want changes, we should lobby the political branches.

Tuilapea Kennedy majority

1. There are two aspects to capital decision-making: eligibility and selection, and there are separate requirements for each. a. To be eligible, D must be convicted of crime for which DP is a proportional punishment + there must be at least 1 AF at either the guilt or penalty phase (in CA statute this happens at guilt phase with the "special circumstances.") i. (1) AFs should not make every D convicted of murder eligible for DP (2) they cannot be unconstitutionally vague (vagueness only really a concern for yes/no propositional factors) (3) they need some nexus to the crime. ii. This stage performs the narrowing function, and allows for appellate review (thus why there's nexus requirement). b. Selection should focus on making an individualized determination of character of D and the circumstances of the crime (gets this from Zant). Must be expansive enough to allow juries to accommodate all ME. i. Selection factors can be relatively vague: (1) can be open-ended (e.g. "consider the circumstances of the crime.") (2) don't have to be directional (e.g. "consider the age of the D" doesn't tell jury whether being old is a mitigator or aggravator) (3) no instruction needed on how a jury should weigh any particular factor. ii. This phase isn't meant to perform a narrowing function. Thus, unlike eligibility phase, questions can be about things not directly related to the crime (like D's family history). Doesn't have to guide discretion or narrow, doesn't have to be yes/no 1. Remember that under Stephens, threshold statutes can just say "your unfettered discretion" at Step 2. 2. Vagueness review for both eligibility and selection factors is quite deferential. (1) A factor isn't unconstitutional if has some "common-sense core of meaning" juries should be able to understand (2) in rare instances where we've found factor vague to point of creating unacceptable randomness, it's been yes-no proposition ("whether crime was especially heinous, atrocious, or cruel"). These concerns less present w/ open-ended factors that just point jury to some subject matter.

Steiker & Steiker 2

1. These modern trends point to the conclusion that abolition might be in the future a. These destabilizing effects represent institutional pressure to change the DP i. This has à a decline in DP, giving more force to the argument that it is too infrequently imposed to have any real benefit for criminal justice (see Furman's original concerns about it) ii. Increasing legal regulation à judges dealing with a lot of DP cases à judges changing their minds 1. Blackmun, Stevens, Powell (after he left Court) iii. It has also à states abolishing DP (because of costs, etc.). 1. This provides room for the SC to step in and say that DP violates evolving standards of decency using tests it has already developed (like proportionality) 2. See alllll the proportionality cases b. Legal regulation has also provided a yardstick to measure the DP's success. i. We can compare how far our actual system is from the original aspirations of the new DP framework described in Furman. This makes it easier to justify the argument that the DP is unreformable and abolition is appropriate

Flowers Thomas dissent

1. Thomas objected to the very tool that Batson provides on appeal: vacating a conviction on the basis of state court error. Thomas argued that the Court "never should have taken th[e] case" because there was "no disagreement among the lower courts," and asserted that "the Mississippi Supreme Court did consider the prosecutor's history." a. He took issue with the majority's reframing of the case and its application of the standard of review. b. He speculated that the Court's possible mistrust of southern courts and the media attention surrounding this case may have influenced the decision to grant certiorari. 2. On the merits, Justice Thomas found "Flowers presented no evidence whatsoever of purposeful race discrimination." a. He discounted the majority's statistical evidence of disparate questioning and accepted the race-neutral reasons proffered by the State for striking black potential jurors. b. Justice Thomas chided the majority for presuming Evans's racial motivations. c. After concluding that there was no valid race discrimination in the present case, he then turned to the case's history. i. Here again, Justice Thomas disposed of any claim of racial bias, stating that forty-nine of the State's fifty strikes were race neutral. 3. Finally, Justice Thomas called into question the very premise of Batson, arguing that it has "forced equal protection principles" on a discretionary trial procedure and "blinded the Court to the reality that racial prejudice exists and can affect the fairness of trials." a. "The Court's Batson jurisprudence seems to conceive of jury selection more as a project for affirming the dignity of persons than as a process for providing a jury that is, including in the parties' view, farier." b. He challenged the premise that a defendant has standing to assert a Batson violation, as a defendant is not "entitled to a jury of any particular composition" and thus has not suffered any "legally cognizable injury." c. He urged the Court to return to a "pre-Batson understanding" that allows race to be a consideration in peremptory challenges and argued against the elimination of peremptory strikes. d. Citing studies in support of his proposition, Justice Thomas stated: "The racial composition of a jury matters because racial biases, sympathies, and prejudices still exist." e. In closing, Justice Thomas reminded the Court of possibly the most consequential outcome of its decision: "The State is perfectly free to convict Curtis Flowers again."

Furman: blackmun dissent

1. Those in majority are using moral/policy arguments about civilization and valuing human life, but that's not our role. Were I a legislator, I would vote against DP for policy reasons. 2. Majority's decision will have vast, undesirable consequences. You're striking down many statutes, and states might infer that the answer is mandatory CP/no mercy ("I thought we had passed beyond that point in our criminology long ago").

Glossip v. Gross, BREYER Dissent (bring us a case asking whether DP violates 8A) 1-2

1. Three fundamental Constitutional Defects a. (1)—Cruel b/c Lack of Reliability i. Innocence—Breyer goes on and on and on about innocence, citing all these cases of where we either executed an innocent person or almost executed an innocent person ii. DP cases seem to provide less reliable results than others. Why? 1. Pressure to convict 2. Death-qualification tilting juries toward guilt 3. Flawed forensic testimony iii. "Unlike 40 years ago, we now have plausible evidence of unreliability." b. (2)—Cruel b/c Arbitrariness i. Cites Stewart's "struck by lightning" in Furman and says that now, 40 years later, "experience make it increasingly clear that the DP is imposed arbitrarily." ii. (a)—we do not execute worst of the worst (cites studies) iii. (b)—we execute for arbitrary reasons 1. Race/Gender a. Points out is impossible to get rid of so long as we have mitigation + a racist society 2. Geography 3. Politics iv. "Four decades ago, Court believed it possible to interpret 8A in ways that significantly limited the arbitrary application of DP ... But that no longer seems likely"

Stephens Stevens majority

1. Threshold statute fine bc (a) eligibility test sufficiently narrows the death eligible class and (b) jury still needs some discretion. (a) GA's Step 1 sufficiently narrows class of persons eligible to satisfy Furman (b) Step 2 discretion not unconstitutionally arbitrary—jury still needs some discretion to ultimately determine whether DP is appropriate. 2. A ruling that one of AF found to apply to D is unconstitutional doesn't vacate DP sentence bc the remaining AF still satisfies Step 1 Eligibility. (a) Jury can already consider whatever it wants in Step 2, even things that would be unconstitutional in Step 1 (b) No violation of Stromberg (which requires that general jury verdicts be set aside if jury was told to rely on any of two or more independent grounds & one ground is unconstitutional) bc here we know was at least one other ground. a. NOTE: Whether this is true when a statute doesn't have an eligibility test, but rather goes straight to weighing AFs and MFs (known as a "weighing statute", such as in FL + MS) is resolved in Clemons v. Mississippi (1990).

Stephens Marshall dissent

1. Threshold statutes clearly violate Furman. Simply requiring jury to find one AF before granting them unbridled discretion in deciding whether to impose DP is no different from discretion found unconstitutional in Furman. a. "Today we learn for the first time that the Court did not mean what it said in Gregg ... we now learn that the actual decision about whether a D lives or dies may still be left to the unfettered discretion of the jury ... if this is not a scheme based on 'standardless jury discretion' I do not know what is." 2. Invalid AF affects Step 2 sentencing. Juries likely to place more weight on statutory AFs than other evidence, thus here they likely put undue weight on that information in Step 2 bc it was enumerated as a Step 1 AF. a. "There is simply no way for this Court to know whether the jury would have sentenced respondent to death if the unconstitutional circumstance had not been included in judge's charge."

Reiman 1-2

1. Traditional abolition arguments fail. Arg #1: Two wrongs don't make a right. But we obviously don't have a problem with killing people (like in war). Also, since the murderer is himself guilty of murder, we aren't doing the same wrong (we aren't killing an innocent person). Arg #2: Mistakes will happen. But we accept mistakes in many areas (e.g. building a highway knowing people will die). Arg #3: Implies convicts can't change. No it doesn't—punishment only has to deter future crimes or be equal to the suffering the guilty caused. 2. Under lex talionis/perfect retributivism, there is a right to impose DP for murder. Lex talionis: eye for an eye; this is the law enforcement arm of the golden rule. Reinforces equality of V and offender. NOTE: Reiman is a limiting retributivist, which means the actual act done is the upper bound of the punishment. a. Hegel: crime upsets the equality between persons and retributive punishment restores that equality by 'annulling' the crime. b. Kant: bc people are rational actors, when a rational being acts in a certain way towards someone, he implicitly authorizes similar action toward himself—when we kill murders we respect them as rationale beings.

McGuatha Harlan majority

1. Unitary trial issue: Life is full of tough choices. D faces similarly difficult choices when deciding whether to testify in his own defense in ordinary criminal trial. 2. Standardless discretion: creating standards is a "task...beyond present human ability." We trust juries; since there is no such thing as an exhaustive list of factors/considerations, any attempted list would either be too restrictive and cabin the ability to grant mercy, or too vague/permissive and thus pointless boilerplate. a. "To identify before the fact those characteristics of criminal homicides and their perpetrators which call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority, appear to be tasks which are beyond present human ability." i. Brennan's response: But MPC has already been able to do it! Let states try making these lists first before you say beyond present human ability.

SV: 1-3

1. Unstated assumption of CP opponents = CP counts as an action by the state, whereas refusal to impose it counts as an omission, and that these two things are morally different. a. While this may be true for individuals, it's not true for governments. (1) Govs have an obligation to act to protect its citizens and individuals typically have no such obligations to other individuals in most cases. (2) Gov is involved in any murder inherently—the decision whether to murder is made in light of the government's criminal justice policies. Thus, Govs always face risk-risk tradeoffs (when regulation of one risk gives rise to another risk), and in the CP context it can be thought of as a life-life tradeoff. 2. Both consequentialists and deontologists should support CP if deterrence is proven. a. Consequentialists should support bc it minimizes killings overall. b. Deontologists will be indeterminate in the face of life-life tradeoffs. Either action will result in a killing. The only deontologists who will continue to reject CP are those who both insist upon a (pointless) distinction between acts and omissions AND don't have a consequentialist safety valve. i. After all, deontological values are usually just heuristics we use when we can't make utilitarian calculations. 3. Responding to argument that DP application is arbitrary / racist. a. Private murders, which you deter by using DP, are inherently more arbitrary or invidious than DP. Most murder is intraracial, so African-Americans have the most to gain from deterrence resulting from DP.

Guided discretion doctrine

1. Was there adequate narrowing? a. All that is required for constitutionally sound narrowing is the finding of one AF (Stephens) at either the sentencing or guilt phase (Lowenfield) b. AF "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery" does not adequately narrow, without further judicial narrowing (Godfrey). i. NOTE: However, the statute can be saved if (a) either the jury either receives an instruction w/ a narrowing construction or (b) SCT itself construes narrowly and applies that definition consistently on review (Godfrey). c. CA's penalty-phase "special circumstances,"—vague "selection" factors that can be either AFs or MFs—adequately narrowed even though one was "circumstances of the crime." (Tuilaepa). 2. An element of the crime can also serve as an AF (Lowenfield), bc all that USC requires is formal narrowing (and not channeling/guiding through telling jury what to consider) (Stephens).

Habeas: general notes

1. Writ of Habeas Corpus available where persons are held in violation of USC or federal laws. This permits a federal court to order discharge of any person held by a state in violation of the supreme law of the land. But writ does not need to —> the release of the prisoner. In most cases, it will just —> a retrial in a fashion meeting constitutional demands. Bc of its origins in the common law, SCOTUS has been able to manipulate habeas' scope through common law / equitable means even though it is technically statutorily-based.

AEDPA 2244

2244(b)(1), if you've raised a claim before, used to be about "ends of justice" now "shall be dismissed." i. Even if you you're innocent or have new evidence 2244(b)(2), about new claims, used to allow you to bring it unless "abusing the writ." Now, "shall be dismissed" UNLESS "(1) new rule that SCOTUS has made retroactive to habeas proceedings OR (2) factual predicate for the claim couldn't have been found at the time with due diligence + facts show innocence by clear and convincing evidence. 2244(b)(3) you need certification from a federal Court of Appeals before coming back to federal habeas. 2244(d) now one year statute of limitations, before there had been none, just covered by common law doctrine of laches.

AEDPA 2253

2253: if you want to petition for an appeal of a lower court federal habeas decision, your chances of a grant are now lower; now only COA can grant (through a certificate of appealability) and you have to show that each issue was substantial. Before, District Court could also grant and standard lower.

Pinholster Thomas majority

2254(d)(1) requires that federal habeas review of a state court decision decided on the merits be limited to the evidentiary record that was before the state court. (A) notes 2254(d)(1)'s backward looking language (B) says understanding is compelled by the rest of the statute, which demonstrates Congress's intent to make state court's the main events (C) precedent emphasizes that 2254(d)(1) assess what state court knew and did at time (D) it would be odd to analyze whether state court unreasonably applied federal law to facts it didn't have. This doesn't improperly narrow § 2254(e)(2) (which discusses when you get evidentiary hearings).§ 2254(e)(2) continues to have force, and thus can grant an evidentiary hearing, when deciding claims that were not adjudicated on the merits in state court—so state procedural default with cause + prejudice (like Martinez, see below). i. Other examples: 1. If state-court rejection assumed the habeas petitioner's facts (deciding that, even if those facts were true, federal law was not violated), then a 2254(e) hearing might be needed to determine whether the facts alleged were indeed true. 2. The state-court rejection rested on a state ground, which a federal habeas court found inadequate, then a 2254(e) hearing might be needed to consider the petitioner's (now unblocked) substantive federal claim. FedCourts sitting in habeas are not an alternative forum for trying facts and issues which you didn't pursue properly below. Cites Wainwright v. Sykes that state trial should be "main event."

AEDPA 2254e

2254(e), about when you get a new evidentiary hearing i. Pinholster (2011) interprets 2254(e), says on every federal habeas case decided on merits by state court, facts from the state court should be used. Basically, no evidentiary hearing if there was a determination in the state court on the merits. ii. The one way out of 2254(e)/Pinholster is the Martinez exception. 1. Pinholster and Richter combine together to make it hard for a D to win federal habeas claim if his case has been categorized as having been decided "on the merits." a. Such decisions get no new evidentiary hearing and get deference. 2. But if you can get your case as being decided on procedural grounds (e.g. procedural default), and also show cause and prejudice (see 2254(e)(2)), you can get an evidentiary hearing and de novo review. a. Under Martinez you can get federal habeas review (there's cause + prejudice) if your state habeas counsel failed to make an IAC claim. Since you'll have no decision on the merits, this allows you to get an evidentiary hearing i. Question then becomes what it means to default—simply a failure to raise the argument or can it be failure to present evidence or even failure to present the best evidence?

AEDPA 2254(d)

2254, about what happens inside C3.2254(d) restricts grants to state decisions that were "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by SCOTUS" or was "unreasonable determination" of the facts in light of the evidence presented. 1. Steiker thinks O'Connor is right in Williams v. Taylor (2000) about meaning of 2254d; this provision isn't just codifying Teague, has "unreasonable application" + Congress kept trying to get this specific part reformed (this was O'Connor's point in Wright v. West (1992)). 2. Example of practical difference b/w Teague + 2254(d): Judge denies your Batson claim—under Teague that's old law so judge can hear it, and no deference. But now not de novo, you're not asking whether state court determination of application of law was correct, but whether unreasonable application. It's about making sure state courts are not putting up their middle finger to the Constitution, but not the more searching question of whether it was correct or not. 3. Steiker: This change to deference is single biggest change with AEDPA. ii. Teague says, "dictated by precedent" but doesn't say which precedent, could be COA. But now has to be clearly established by SCOTUS. iii. The important time under Teague is finality (when you are done with C1), but in 2254 when testing for reasonability we look at the last state court adjudication on the merits. (Subject of Greene (2011)) a. This makes sense; we want to see if the state court was reasonable at the time. b. And that last state court adjudication might be in C2, after finality—whenever the last decision on the merits by state law.

Federal Habeas: AEDPA Section 2254d

2254d (state decision on the merits): If claim was adjudicated by the state on the merits, then Federal court can't grant writ unless the state adjudication resulted in a decision that was (1) contrary to, or involved an unreasonable application of, clearly established federal law as determined by SCOTUS, 2254(d)(1), OR (2) based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, 2254(d)(2); Williams. a. A decision is only "contrary to, or involved in an unreasonable application of" SCOTUS-established federal law if "fair-minded jurists could [not] disagree" about the result (Richter). b. For purposes of Section 2254(d)(1), "clearly established federal law" is limited to the Supreme Court's decisions "as of the time of the relevant state-court adjudication on the merits." (Greene) c. Federal habeas review under 2254(d)(1) is limited to the factual/evidentiary record that was before the state court that adjudicated the claim on the merits. Evidence/facts presented to federal habeas court at subsequent evidentiary hearing may NOT be considered. (Pinholster) 1. Martinez creates a functional exception to 2254(d); through it you can default and avoid a decision on the merits at the state level but still have cause to make it to C3 (where you'll then be governed by 2254e; see below) d. If federal court is reviewing a state court's IAC determination, the question is "not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard (Richter). Section 2254(d)(2) maintainsBrown v. Allen's deferential

Comparing the two tracks 3-5

3. What happens when different parts of test point in opposite ways? Interesting how objective and subjective analysis haven't clashed for any case. They torture numbers and add stuff to meet their judgments. "Objective" isn't all that objective. We'll never even get Steps 2 + 3 in T2 unless they do so to help themselves. Aikens + Roper are bad numbers cases but they make it work. 4. Upcoming 8A claims. (1) Severe mental illness (2) brain damage developed as an adult (the ID referenced in Roper requires low IQ + deficits in adaptive functioning in the world + and onset before 18—but what if hit in head as adult and develops it then?) (3) non-interpersonal non-homicide crimes: treason, drugs, terrorists caught before they kill someone (4) Since Miller says LWOP harshest punishment for juveniles + thus requires individualized sentencing/no mandatory JLWOP, would this also hold for those with ID? 5. T1 will be the way to abolish DP per se. Think about the numbers and the analysis, and also realize that Justice Kennedy is the author of a lot of T1.

Sunstein/Vermeule vs. Steiker:

4 major ideas addressed by both: 1. Attitude toward Nathanson concerns about arbitrariness. a. SV: Government equally guilty for murders it doesn't deter; those are arbitrary as well. b. Steiker: For disparate executions there's an expressive signal of systematic racial animus, whereas discrepancies in private murder owe to intimacy, proximity, etc. i. Difference between discrimination and disparate impact. 2. Risk of execution of innocents. a. SV: Not a reason not to have DP; if we can save more innocent people through deterrence than we lose, it would be obliged. b. Steiker: No moral equivalence between (from the perspective of the gov't) purposeful + non-purposeful deaths. Also, execution leads to blame and shame for the individual killed; private killing does not. 3. Torturing torturers a. SV: It's merely speculative that torture would prevent more death; we don't think it would. b. Steiker: Why not just engage in execution of an offender's family, too? This isn't just speculative; we know from other countries that this is very effective. 4. Claim that deontological metrics are merely "heuristics." a. SV: These metrics are just heuristics for when we can't make utilitarian arguments. b. Steiker: Doesn't agree; believes there are higher purposes to deontology, considers herself to be a threshold deontologist.

Weisberg: 4-6

4. 5 common criticisms of multiple regressions (Eras b + c): a. Atypical outliers. (1) Last 4-5 years of Ehrlich study doing all of the work (2) Berk found that if you scramble CP data of all states beside Texas, no deterrent effect. b. Confounding variables. States that execute might be doing other things that also deter crime. For example, Ehrlich and others didn't factor LWOP, clearance rates, emergency medicine, Roe v. Wade (1972), unleaded gasoline, etc. c. Small numbers/inadequate data. (1) Most states don't execute people, even if they have CP on the books (2) data very lumpy; concentrated in a few counties in a few states (3) a lot of court systems in South *still* not computerized, especially Florida (big DP state). d. Endogeneity. Reverse causation/the recursive effect. We're only looking at one-way causation, but number of homicides might be affecting the number of executions. e. Robustness. Most models aren't robust; small changes will change the results dramatically. 5. Denouement of research (studies that are ambiguous or even show no deterrent effect). a. 2010 market share study by Fagan, Zimmerman, and Geller. Finds that while the overall murder rate (which includes 2nd degree and negligent homicide) is negatively correlated with executions, the capital murder rate remains constant. b. 2010 study by Zimring, Johnson, and Fagan. Research looked at Singapore + HK (fairly similar demographics + crime rates). In SG, murders increased when they increased DP, and murders went back down when they stopped. No change in HK during that time. 6. Where we stand (we don't know if deters + we're unlikely to learn given how few we kill) a. We're basically back where we were Before Ehrlich. In 2012, NAS put forth blue ribbon panel saying CP has no proven deterrent effect + studies proving to show it are flawed (although absence of evidence isn't evidence of absence!).

SV 4-6

4. Responding to argument that DP takes pressure off of finding better and less barbaric steps to control homicide. a. Whatever steps states take to reduce homicide, DP will provide further deterrence. The other side assumes other policies are substitutes for CP, but really they are more like complements. b. Many other options just won't be politically feasible. c. No reason to think that if CP were abolished it would lead to alternative efforts to reduce violent crime. d. Regardless, we still need to focus on interim solutions before other policies (such as education and welfare) would have time to kick in. 5. Responding to slippery slope argument that justifying DP would also justify torture. a. Each policy must be justified on the merits. CP does not inherently justify using it on non-homicides, or using torture: (1) it's merely speculative that those things would even deter/have positive utilitarian value (maybe torture wouldn't actually deter or would have far greater negative societal and cultural impacts) (2) no reason to think that extreme cases of moral decisions are reliable trackers of moral truths. 6. Responding to general critiques against utilitarianism. a. This is not about killing innocents to save innocents. In CP you are (most likely) killing an offender to save innocents. b. Govs should face these questions differently than individuals.

Gardner Rehnquist dissent

8A does not compel particular sentencing procedures in capital trials. If DP itself not C+U, "[the absence of] particular sentencing procedures, never previously held unfair under the DPC, cannot convert that sentence" into a C+U punishment. After all, 8A is about modes of punishment, not process by which it is imposed.

Stone v. Powell, Brennan disses t

A USC error has occurred/D is in custody in violation of the USC, so according to (pre-AEDPA) statute we should be able to review. (a) When a state court admits evidence obtained in violation of 4A it has committed constitutional error (b) thus, the D has been placed in custody in violation of the USC and federal habeas is appropriate. Federal habeas isn't just to deter police, but to deter state courts. Given how unpopular 4A defenses are, if we don't protect them, states won't. (a) State courts often act stupidly (b) some states (like AL) want to actively resist enforcing SCOTUS rulings. Habeas can check this recalcitrance—without it, the only check is cert in C1, which isn't frequent enough to be effective. We can't narrow habeas to innocence. NOTE: Brennan worried that this case signals that courts will narrow habeas review to only those claims that deal with innocence, not those relating to procedural violations—turns out to be wrong, as we'll see.

Morgan v. Illinois Scalia dissent

A juror who would impose DP automatically does not disqualify him. Really you're asking whether a juror is unwilling to provide weight to any MFs. But he isn't failing to follow the law by not considering ME—W/L/E just requires court not prevent sentencer from considering ME; doesn't require that the sentencer gives them weight. i. NOTE: this is very debatable; Eddings seems to requires some non-zero weight to be applied. Majority didn't directly address this point.

Nathanson argument

Arbitrary CP is immoral and unconstitutional. (1) The class, in the first place, is selected arbitrarily (big difference b/w him and VDH) (2) who actually gets executed within the class is arbitrary, and there is discrimination on the basis of race. The arbitrariness present is ineradicable (3) overall, better to err toward the injustice of not punishing the guilty than punishing the innocent (based on Blackstone's formulation: It is better that ten guilty persons escape than that one innocent suffer (1765)). Answering VDH's argument that unequal justice is better than equal injustice. VDH assumes that punishment is a noncomparative matter: it depends solely on what a person deserves and not on how others are treated. But equality concerns can outweigh justice. VDH assumes we can accurately distinguish those that deserve to die from those that don't. We can't. Determination of who deserves to die is largely arbitrary/subjective; there is no guarantee that people we sentence to death are the ones that really deserve DP. DID: We shouldn't eliminate all punishments just bc punishments are generally arbitrary. (1) Death is much more severe (it obliterates the person and deprives him of further right to appeal) (2) there is no proof death is necessary for deterrence (punishment in general is necessary, but we can survive without DP).

McCleskey Powell Majority 3-4

Baldus study does not prove 8A C+U violation. Two bases for C+U claim: (a) disproportionality and (b) arbitrariness.Disproportionality. (i) Irrelevant that there's comparative disproportionality with other crimes committed by other individuals who didn't get DP (ii) moreover, where statutory procedures adequately channel discretion, proportionality review isn't constitutionally required (iii) leniency to others does not make the punishment here less just; cites Gregg in saying that mercy does not render DP A+C. A+C because racial considerations may be coming into play. i. Allowing juries to exercise discretion is fundamental part of our justice system, and allowing consideration of individual factors is key to the constitutionality of DP specifically. We have to accept some level of discrimination in order to allow for this discretion—no system is perfect. 1. Plus, this is a far cry from systemic efforts found in Furman. 2. Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process. ii. There are checks such that the discretion usually helps D (if discretion is exercised adversely to D it can be reviewed, but otherwise no) Granting D's claim would create slippery slope. Due to broad reach of 8A, (a) Would apply to other crimes, other minorities, or just a variety of characteristics in general (NOTE: this is a reverse DID argument (a fear of "too much justice"—Brennan dissent)) Legislature better able to make decisions about appropriate punishment and weigh statistical studies.

Simmons O'Connor and Souter concurrences

Concurring (Souter) 8A, not just 14A DPC, can be basis of the decision. (1) 8A requires heightened standard of reliability in DP cases (Woodson plurality) (2) procedural rules that diminish reliability of sentencing proceedings are invalid (Beck). Souter would require that anytime juror misunderstands a sentencing term, D may demand instruction on its meaning + if instruction is refused, DP can be overturned as having been "arbitrarily/discriminatorily/wantonly/freakishly" imposed per Furman. Concurring (O'Connor) (Similar dynamic as Caldwell; 5th vote so limits the holding) Judge only has to provide information about parole eligibility in cases where state has placed D's Future Dangerousness at issue. In other words, states can limit admissibility of evidence about D's parole eligibility unless being used to rebut claim of Future Dangerousness.

Burger Stevens majority

Counsel performance was reasonable.This was strategy (safe harbor for lawyers under Strickland). i. Lawyer had good reasons not to present ME: (1) would've allowed prosecution to introduce evidence about D's past crimes (theft of candy bar), which would've been at odds with strategy of blaming Co-D (2) By discussing his terrible childhood, might make him seem more dangerous. ii. Concerns about racist jury was also strategy; case was in South. Reasonable not to present ME bc client "told" him there wasn't much ME out there. When D has given counsel reason to believe that pursuing certain investigations would be fruitless or harmful, counsel's failure to pursue those investigations may not later be challenged. "The record . . . does suggest that [counsel] could well have made a more thorough investigation than he did. Nevertheless, in considering [IAC], '[w]e address not what is prudent or appropriate, but only what is constitutionally compelled.'

Burger Blackmun dissent

Counsel's conduct was insufficient. (A) He refused to get psych evaluation bc he thought the lab was biased—he should've gone elsewhere or challenged the biased procedure! (B) he did too little investigation prior to making his strategic decisions; without doing proper investigation, counsel had no basis to make reasonable professional judgment—you can't just ask "who knows anything good about you" + only talk to D for 6 hours total + not even contact mom (she contacted him). There was prejudice. Court has historically found evidence like adolescent psychological problems, troubled childhood, etc. as being MFs that weigh heavily against DP—this is just like facts in Eddings (NOTE: this is indeed like Eddings, and there Court said unconstitutional for judge not to give weight to terrible childhood).

Simmons Scalia dissent

Courts generally leave it to states to decide what evidence should be admissible. (1) Proper inquiry = whether admission/failure to admit evidence so infected sentencing proceeding with unfairness that rendered imposition of DP as denial of due process (2) Seems farfetched to assume jury based its decision on fact that D might get paroled in future, and this is slippery slope (justifies compelling states to admit evidence that most ppl who have life and are eligible for parole don't get parole). "I fear we have read today the first page of a whole new chapter in the "death-is-different" jurisprudence which this Court is in the apparently continuous process of composing."

Atkins Rehnquist and Scalia dissents

Dissenting (Rehnquist) 1. Takes extreme issue with supporting ESD through info in FN21. Takes biggest issue with polling data—not even proof that the polling/opinion studies have been conducted rigorously! (NOTE: polling data extremely easy to manipulate). Dissenting (Scalia) 1. Per se ban on execution of ID is improper. (A) SCOTUS should've left it to jury's discretion to determine on case-by-case basis whether D's disability should prevent his execution based on circumstances of the crime (B) states might want to be able to execute in a few special circumstances even if execution is improper in most cases. 2. No objective evidence. (A) Less than half of states with DP have banned it for ID (B) 2 that have banned haven't created absolute ban (C) these laws are too new; we don't know if they effective nor if states will stick to them. 3. Subjective judgment of Majority is wrong. a. Deterrence & retribution will still be served. (i) No evidence that can't conform their conduct, nor that they are predisposed to crime—they aren't a monolith (ii) thus, they can still be culpable and can still be deterred, even if isn't perfect. b. Responding to claim of increased risk that DP will be applied when it shouldn't. (i) This is a slippery slope—it would have to apply to ugly and inarticulate people too (ii) this is a due process question, not an 8A one. c. Court's decision will lead to people pretending to have ID.

Witherspoon Douglas concurrence

Even those who would automatically vote against DP should be kept in. Majority tries to draw line between jurors that have scruples against the DP and jurors that are categorically against DP. This isn't a meaningful distinction—both of those viewpoints are part of the community and if you want to represent the community you have to represent all these viewpoints.

Morgan v. Illinois White Majority

Even though 6A doesn't require jury at capital sentencing, if state provides one, 6A impartiality requirement applies through being incorporated into 14A due process. TC is required to include in voir dire "life qualifying" or "reverse-Witherspoon" questions upon request. (i) If juror indicates they would automatically impose DP, state court must exclude that juror (ii) Such a juror violates Witt bc view on DP would prevent or substantially impair performance of duties as juror. i. NOTE: there's asymmetry; this is more stringent than the Witt standard. General questions won't satisfy this requirement. Might be the case that a juror, in good conscience, will swear to uphold the law and yet be unaware that maintaining such a dogmatic belief about DP will prevent her from doing so. Responding to argument that bias against DP is different bc one biased juror can prevent implementation of DP. The measure of a jury is taken by reference to the impartiality of each individual juror. The jurors must stand equally impartial. NOTE: Consequences. a. Now when juror says they would automatically impose DP in every case, prosecutor says "Ok but not for every case, right—what if it was your son?"

Stone v. Powell, Powell majority

Exclusionary rule isn't an independent, personal constitutional right; it's rather a prophylactic/preventative device. It doesn't redress any injury to the V's privacy, since it's too late for that. Its purpose is to deter police misconduct in violation of 4A, and like all remedial rules, should apply where its objectives are most efficaciously served/when the benefits of applying it outweigh the costs. Cites Calandra (grand jury exception to 4A exclusion), Walder (impeachment exception to exclusionary rule); and fact that under standing doctrine, the exclusionary rule can only benefit person who suffered the search/seizure. Here, costs of recognizing a 4A claim at habeas review outweighs its benefits.Modest benefits. Most police are going to be deterred by the risk of exclusion of evidence at trial but not by the marginal risk of evidence also being excluded at federal habeas.Substantial costs. Diverts focus of the trial from guilt/innocence of D bc violations don't effect reliability—4A does not serve a truth-seeking function: the evidence excluded is often reliable and probative. Habeas is about innocence. FN31: habeas costs us a lot (comity, finality, etc.), and these costs weigh more heavily if the issue at habeas is unrelated to innocence determinations.

Wiggins O'Connor majority

Fails performance standard.Counsel should have put together social history report. Failing to do so violated both (1) ABA (Court spends a lot of time talking about ABA) and (2) MD standard practice (had state funds available to do it + judge had never seen someone not do it).Any reasonably competent attorney would have investigated more based on information counsel found in the DSS records. These records showed (1) D's mom was a chronic alcoholic (2) D had been moved around to many foster homes and displayed emotional difficulties (3) had once been left for days at home without food. 1. Strategic choices made after less than complete investigation are reasonable only to the extent that reasonable professional judgments support the limitations on investigation. No requirement that counsel investigate every conceivable line of ME no matter how unlikely to assist, but you have to do the minimum. 2. It appears failure to do more investigation here was the result of "inattention, not reasoned strategic judgment." Bc they didn't know couldn't bifurcate until day before. There was prejudice.Counsel would likely have presented this social history evidence had he known about it (bc a competent attorney probably would have) (1) It showed really bad sexual and physical abuse and a life filled with challenges, along with diminished mental capacities (2) unlike other cases, no indication that presenting this ME would've hurt D (by, for example, opening door for something bad—but NOTE: this isn't quite true bc of the sexual nature of crime)It's reasonably probable would have led to different sentence given only need 1 juror to change her mind to get hung jury + thus LWOP. ME was powerful and was similar to kind of evidence SCOTUS has found relevant in other cases (Penry, Eddings, Lockett), which found troubled history = lessened culpability. i. "Wiggins' sentencing jury heard only one significant mitigating factor—that [D] had no prior convictions. Had the jury been able to place petitioner's excruciating life history on the mitigating side of the scale, there is a reasonable probability that at least one juror would have struck a different balance."

Kennedy, "McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court"

Focuses on racial impacts on Vs/black community instead of Ds. (a) Black Vs less likely to get justice in form of DP than white Vs—thinks of CP as a social good. Right now, problem is that the racism protects white Vs without affording black Vs the same protection. We should protect both, not turn off the lights for everyone (b) fixing this problem might have perverse effect of creating more black Ds getting DP since most of the people who kill Black Vs are Black. Next analyzes a variety of different remedies to the problem of the racial discrimination Stevens proposal (confine DP to worst of the worst so racial discrimination disappears in Baldus study). (i) No clear way to draw lines between categories of crimes (ii) what is the worst of the worst, anyway? (iii) "Middle crimes" will still exist; will just move.Mandatory sentencing: power to grant leniency is the power to discriminate. (i) Juries could still discriminate by refusing to convict (ii) prosecutors would still discriminate by deciding who to chargeProsecutor guidelines. Given SCOTUS hasn't had much success creating juror guidelines, probably won't fare much better for prosecutors.Declare a constitutional violation but let states create remedy. Some state officials have been stubbornly recalcitrant in enforcing the Court's rulings.Level Up. (i) Broaden the scope of capital sentencing so that it isn't racially discriminatory. DP would be allowed, but suspended until states could show that racial disparities were eliminated (ii) they would probably have to fix their issues through "race-conscious" affirmative action-type statutes—but sentencing individuals to death pursuant to a race-conscious plan to equalize the DP might simply be too harsh a social tax to impose, even on murderers. And do we want prosecutors having quota?Abolition. Requiring abolition in McCleskey wouldn't have gotten abolitionists much: (a) Only one state, and the abolition would be based on racial oppression that might not be applicable to other Jx with the DP (b) would also implicitly concede the DP is ok if it's applied without racism.

Tuilapea Blackmun dissent

Furman dissenter 1. Selection stage factors are unconstitutionally vague bc they fail to guide sentencer's discretion. (1) Jury can treat any of factors as AFs or MFs. They are given no guidance on how to consider them. (2) Listing selection factors (vs. not listing them like in the GA statute) runs the risk that juries will consider the factors as AFs only (instead of also possibly MFs) and impose DP more often (3) Risk that juries will consider a factor as an AF bc not labeled as MF. 2. Broad AFs allow racism to creep back in. NOTE: it's true; social science shows that in ambiguous situations, people think those w/darker skins more likely to have done it.

Brown: Frankfurter

Gives guidance on how to apply federal habeas review. (NOTE: Doesn't want to make review too easy and encourage frivolous suits, and doesn't want to infringe on state's ability to fight crime, but at same time, wants to make sure that FedCourts can protect rights and thus review and grant relief in the few truly meritorious claims). 1. "For surely it is an abuse to deal too casually and too lightly with rights guaranteed by the Federal Constitution, even though they involve limitations upon State power and may be invoked by those morally unworthy." ii. A prima facie case must be made out by the petitioner. Application for writ should be dismissed when it (a) fails to state a federal question, or (b) fails to set forth facts which, if accepted at face value, would entitle the applicant for relief. iii. Failure to exhaust an available state remedy is an obvious ground for denying the application. iv. Weight to give to a state's resolution of the federal issues: 1. Facts. FedCourts should be deferential to state court findings of fact, which are presumptively correct (e.g. was D beaten by police?). a. To change a state court's findings, D must show that the findings were clearly erroneous (similar standard to review on direct appeal). 2. Law. De novo. 3. Mixed Questions. De novo. NOTE: This understanding + pre-AEDPA Statute = powerful writ2254(d) specifies that federal judges can grant evidentiary hearing with new facts when merits aren't resolved, procedure not adequate, facts not fully developed, state had no Jx, D denied due process, etc.If you want to appeal a lower federal court habeas decision, a federal judge (district or circuit) must grant a certificate of appealability under § 2253. D must show his claim is meritorious.2254(a) If you have gone through the federal habeas process once, you can go through it again if you have good reason. (a) Judges aren't required to hear same claims again. There has to be a new argument (b) if there is new evidence, you must show that you didn't deliberately withhold it and that you couldn't have found it originally with "reasonable diligence." This would be an "otherwise abuse" of the writ.

Bright, "Counsel for the Poor" 1-2

How good D's lawyer is, not specific factors of the D's crime, is single most important factor in determining whether will get the DP. Arbitrary results often stem from inadequacy of counsel; the process of sorting out who is most deserving of DP does not work when most fundamental component of the adversary system (good counsel) is missing. Inadequate legal counsel is pervasive in Jx that most often sentence Ds to death. Many reasons why counsel is so inadequate in these regions: Prosecutors get much more resources and better attys. Often get unlimited funding for experts, pay better salaries, and often appoint more than one lawyer to the case. Defense attorneys appointed by the court often don't have any expert assistance or minimal funds to pay experts. Often they don't even know they can get funds from the court.Lack of indigent defense programs. (1) Many Jxs don't have comprehensive public defender program whose resources parallel DA offices (2) many Jxs appoint people from private bar with no experience and pay them a pittance.Oversight by judges. State judges often elected and thus have incentive to not appoint best attys either because (1) they don't want to burden them or (2) they don't want to look soft on crime.SCOTUS has a weak standard for effective counsel. (1) SCOTUS doesn't require effective counsel, it only bans IAC (even then, Strickland is so weak) (2) this leads to a "Pernicious visegrip": courts refuse to address constitutional violations because they weren't preserved by counsel, but counsel's failure to recognize and raise those issues is not considered deficient.

Porter v. McCollum (Cert petition, 2009)

Issue: D charged w/killing his ex-gf and her new bf. Facts about D. (1) Heroic Korea War vet (2) suffered brain damage during the war (3) abusive childhood (4) long term substance abuse (5) impaired mental health and mental capacity. What counsel did/didn't do. (1) Didn't do a preliminary investigation (2) didn't obtain any school, military, or medical records (including likely PTSD) (3) didn't interview D's family bc D told him not to (4) didn't present much about him beyond facts of his crimes. Per curium: 1. Counsel deficient. (1) Didn't even do a preliminary investigation, let alone prevailing profession norm of conducting thorough investigation of the D's background (2) there was also evidence that additional ME existed (3) it doesn't matter that D was fatalistic and not cooperative/forbid counsel from speaking with family—he didn't say you can't put on a mitigating case, not look into his records, etc. 2. D was prejudiced bc the ME was strong and the AFs were weak. (a) ME that D was heroic veteran with brain damage was obviously strong and nothing close to it was presented to the jury (b) AFs weren't that strong (only 1 factor was found to be relevant). NOTE: Interesting to think maybe D's war service could have cut against him: he went AWOL in Korea and again when he returned home. But opinion says no—people are understanding of soldiers' struggles and you might still be messed up from war once you get back.

Jury selection doctrine

Jurors may be struck for cause if:Their anti-DP views would prevent or substantially impair performance of their duties (Witt).Their pro-DP views are such that they would always impose DP on a person who's guilty of the crime (Morgan). It doesn't matter if death qualification slants juries toward conviction (McCree) bc:No 6A fair X-section violation as long as no systematic exclusion of a distinctive group in the venire or jury pool.No impartiality violation as long as jurors will conscientiously apply law to fact. Lawyers can ask voir dire questions about cross-racial bias of jurors in CP interracial crimes but not other criminal cases (Turner v. Murray)(RACE IS DIFFERENT). Due to Apprendi and Ring, the 6A prohibits judges from finding any AFs (Hurst). Capital D, no less than non-capital Ds, are entitled to jury determination of any factor on which legislature conditions an increase in maximum punishment, including AFs. (NOTE: But judges can still do DP sentencing if they're only weighing AFs and MFs that have been found by a jury). Indicators of purposeful discrimination for Batson: (a) race-neutral justifications shifting over time (b) state accepting white jurors that had the same race-neutral "flaws" state is using as justification (c) smoking gun evidence, like prosecution notes that are blatantly racist (Foster).

Jury selection 3-4

Jury Selection Process. Pool—>Venire (60ish)—>Panel/Petit Jury (12). At venire you do voir dire—ask jurors many questions, then argue who should be dismissed. i. Court can exclude as many jurors as it wants for cause (e.g. bias) 1. If juror who clearly couldn't be fair and impartial makes it onto the jury the trial is automatically invalid (no harmless error review)—but you must've kept him on/not peremptoried him! 2. Lawyers for both sides try to do anything they can to convince the judge to exclude a venireman for cause. 3. Court's exclusions for cause are reviewed for abuse of discretion. ii. After exclusions for cause, both sides get peremptory challenges to exclude a juror for any reason. 1. Still popular bc acts as a second check on judge's exclusions for-cause. 2. How do you know who to strike? (a) ask questions at voire dire (b) make assumptions about race, gender, age, etc (women and Blacks more opposed to DP and vice versa). iii. Most important Q you ask potential jurors = attitudes about DP. This is all you care about bc chance of getting acquittal at guilt phase very low in typical capital case. iv. "Colorado method" of jury selection that CP defense lawyers use (Kristen Nelson mentioned this): (1) They rank every juror from 1 to 7 in terms of attitude toward DP (2) they ask them if there's any case that deserves automatic DP or automatically shouldn't get it (3) they emphasize that it's your decision, don't let peers sway you + law is always satisfied w/life sentence. Pre-Witherspoon, basically anyone with reservations about DP was off for-cause.

HEIGHTENED RELIABILITY: N&B 1-4

Known as "Super Due Process for Death" — 4 cases Like a 4th mini-pillar, a weird-grab bag of cases. What are these cases decided under? Unclear generally if relying on 8A "DID" or heightened Due Process standards under 14A. Likely driven by both = DID so need to invalidate procedural rules that harm reliability of sentencing decision (Beck).Though the phrase "heightened reliability" comes from 8A doctrine. Woodson plurality: i. "Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Bc of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." (1) Gardner: 14A (but with some 8A-type language); (2) Beck: unclear (3) Caldwell: 8A (4) Simmons: 14A, explicitly says "no opinion" on whether 8A requires it. 3 Main Pillars are already kind of like heightened reliability themselves a. No standardless sentencing discretion (Gregg (1976)) b. Individualized sentencing (Woodson)(1976)) Proportionality T1 (Coker (1977)) (even Scalia, in Harmelin, acknowledges might exist for DP). d. So these all start in 1976-77, but then Court gives us "Heightened Reliability." 4. Note that Beck is about the guilt phase, but the other three cases are about the sentencing phase.

Graham Kennedy majority

Majority (Kennedy) 1. Court applied T1 instead of T2 even though wasn't DP case. Recast T1/Coker as for categorical bans (like ban on executing ID in Atkins); T2/Harmelin as for determining whether individual's punishment is unusually disproportionate in a specific case. a. NOTE: this is complete BS; look at Enmund—literally the most individual case in all 8A jurisprudence (non-triggerman + no intent + etc.). Harmelin itself was a case that literally applied to a class/category, 3-strikes drug dealers! b. NOTE: no way this, or Miller (below), could survive T2. 2. T1 Test a. Objective factors i. Legislatures: only 13 have banned. 37 states + DC + FedGov allow mandatory JLWOP for non-homicide crimes. 1. BUT (i) only 12 states actually impose it (ii) even if 37 states allow, not evidence of affirmative support—JLWOP for non-homicides typically arises out of interaction of 2 statutes—one statute concerning mandatory LWOP, and one concerning juvenile offenses—and is thus not reflective of a conscious legislative choice (same point made in Thompson (1988)). 2. NOTE: Numbers really tough here, but Court finds consensus in 13! ii. Jury Sentencing: 129 juveniles serving LWOP sentences (much bigger than the 5 in Atkins or 6 in Roper) 1. BUT (i) We have to look at denominator, not just numerator—there are TONS of non-homicides committed by juveniles that are eligible for JLWOP; this is small fraction (NOTE: you can say this to argue against DP generally) (ii) Over half are from a single Jx, FL)(NEW; this is point about geographic lumpiness/saying not really nationwide practice). iii. International consensus against it. b. Own judgment i. No penological theory justifies it. Retribution doesn't justify—when compared to adult murderer, juvenile who did not kill or intend to kill has a twice-diminished moral culpability. No other theory justifies either.

Noia Brennan majority

No exhaustion issue bc he tried all the avenues that were available to him currently; he can't go back in time and direct appeal. NOTE: this is still good law. IASG doctrine does not apply to federal habeas. State procedural rules can't prevent SCOTUS from hearing a claim of unconstitutional infringement bc SCOTUS has broader Jx on collateral review than on direct review. (1) In C1, SCOTUS is reviewing state court's judgment (and thus IASG doctrine applies) (2) on collateral review, SCOTUS is asking standalone question of whether detention is valid (3) habeas both broader/narrower: "Habeas lies to enforce right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment, it can only act on the body of the petitioner." However, federal habeas judge has discretion to deny relief if judge determines D deliberately bypassed state courts to go to FedCourt (acknowledging that some Ds might "sandbag.")D, not counsel, has to deliberately bypass states—must be "knowing and voluntary." Protects D against mistakes made by incompetent lawyers. i. NOTE: Brennan presumes that you would only bypass state habeas/state appeals if you had incompetent lawyer, but Steiker points out there are many strategic reasons to skip state forum—avoid state court finding bad facts that would be given deference later on, etc. D in this case didn't deliberately bypass states even though didn't file appeal in C1. Fear of getting DP on retrial means not deliberate choice.

Witherspoon Stewart Majority

No relief for conviction. D argued that death-qualified juries are biased toward conviction, but evidence of that is "tentative and fragmentary" and thus not compelling. Provides relief for sentencing.Juror's views on DP are important, admissible part of their discretionary judgment—as long as they're still willing to set aside their scruples and impose DP when appropriate. If you exclude everyone with scruples against DP, jury no longer represents the community; only represents a "distinct and dwindling minority." i. "State may not entrust determination of whether a man should live or die to a tribunal organized to return a verdict of death." You can still exclude jurors who say they would never vote for DP/views on DP prevent them from following the law. THE TEST (FN 21): if potential juror made it unmistakably clear (1) that they would automatically vote against the imposition of DP without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward DP would prevent them from making an impartial decision as to the D's guilt.NOTE: but during questioning jurors are always confusing + never clear! NOTE: Consequences.Under this standard, strategy a bit bizarre for D counsel; you want juror to be anti-DP but also to say that he/she won't automatically vote against it. i. Juror says she's totally opposed to DP, defense counsel: Ok but you would give it to Hitler, right?

Van den Haag: Refuting Reiman and Nathanson: Reiman

No way to know if a punishment is proportional to a crime. How do we measure rape against length of imprisonment? Lex talionis ceiling is too low; punishment on the offender should be greater than the damage suffered by the V. Crimes cause societal harm on undeserving people—you take an eye, the rest of society has wear protective goggles. The poor are not less responsible for their crimes. A criminal is responsible so long as she is knowing and willing/has the ability to control her actions. Poverty is neither a necessary nor a sufficient condition for crime, and thus certainly not a coercive one—(a) lots of poor people don't kill (b) would we allow the same defense to a wealthy person? (c) insanity/your will being compromised can mitigate but through the formal legal defense. Civilization arguments don't make sense bc they rely on arbitrary, subjective definitions of civilization. Modernity not always good (global warming!). So let's have a moral argument; this isn't just a sociological issue. Inconclusive proof about deterrence means your stance comes down to whether you prefer to protect innocents or the guilty. NOTE: this is core of Sunstein/Vermeule argument. Torture shouldn't be a punishment bc it is repulsive. This may be overcome if there's sufficient deterrence value/it made us safer. LWOP is worse/more cruel/more disproportionate than DP. People change over time, so that eventually you are punishing a totally different person than who committed the crime. That's what's disproportionate.

Sykes Brennan dissent

Noia rule is better. (a) Congress desired to expand post-trial access to FedCourts—this new test flouts that concern by allowing states to control who gets access to FedCourts through revising their procedural rules to increase or decrease risk of procedural default (b) no one bypasses state court on purpose, it's normally just bad lawyering, so this will punish D's with bad lawyers (c) without habeas relief in FedCourts, no relief will be available—these constitutional claims will never be heard. Justifications for new rule are not persuasive. (a) States aren't disrespected through Noia rule—their procedural rules will always apply to their own state courts. But no reason to apply them to FedCourts (b) no deterrence bc no one avoids state courts on purpose (no reason to avoid potential avenues for relief).

Bobby v. Van Hook (Cert petition, 2009) OI

Overview: (1) ABA standards are a guide, not a command, and must reflect prevailing standards. (2) guiding prevailing standards must be those prevailing at the time representation occurred (3) there comes point where evidence can be expected to be cumulative and distract from other duties; not pursuing such evidence is reasonable/not deficient. Issue: D received DP for going to gay bar, luring a man to his home, and killing him. Facts about D. (1) Terrible childhood—had been exposed to alcohol at age two, witnessed sexual abuse at a young age (2) impaired by alcohol and drugs. What counsel did/didn't do. (1) Didn't get mental health expert (2) requested and relied on presentence report without objecting to damaging evidence it contained (3) did not interview some friends and family, including aunt and uncle.

Wong v. Belmontes (Cert petition, 2009)

Overview: (1) Admitting one kind of evidence can inadvertently let other, bad evidence in, and that should be considered in analysis at both stages (2) if new evidence offered would only be cumulative, unlikely that the outcome of trial would have been different, so insufficient to constitute prejudice against D. Issue: D bludgeoned a girl in the head until she died, received DP. Facts about D. Even though escaped conviction, very strong evidence that had committed a prior murder. What counsel did/didn't do. Restricted testimony on D's character to what had come in at the plea colloquy so that contrary character evidence and respondent's criminal history, including the prior murder, would not be allowed in. Per curium: 1. Counsel was probably not deficient bc evidence of past murder committed by D might otherwise have come in. Tct explicitly told counsel that if his mitigation case swept too large that evidence would come in. 2. BUT, doesn't matter if counsel was deficient b/c no prejudice. (1) A lot of ME would've been cumulative (2) presenting more ME probably would've brought in the murder evidence; when you are evaluating prejudice you must consider everything that would have changed, including things that would've helped and hurt the D.

Godfrey v. Georgia (1980) overview and issues

Overview: (1) Catchall AF (b7) in post-Furman GA statute ("murder was outrageous, wantonly vile, horrible, or inhuman, bc it involved torture, depravity of mind or aggravated battery to victim") is too broad and thus unconstitutionally vague (2) SCT interpretations of statutory AFs can cure those factors of unconstitutional vagueness. These can be saved if defined in a way that will guide sentencer and allow appellate review (objective, non-vague) (like an 8A void for vagueness doctrine). Issue 1. Is GA catchall AF (b7) "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim" too vague to guide discretion?

Gregg v. Georgia (1976) overview and issues

Overview: (1) DP not per se C+U (NOTE: first and only case to uphold DP against per se challenge) (2) GA's revised post-Furman DP statute sufficiently addresses Furman concerns. Issues 1. Is DP per se unconstitutional? 2. Is GA's revised post-Furman DP statute constitutional? NOTE: features of statute: (1) bifurcated guilt and sentencing phases (2) listed number of AFs that jury has to consider in deciding whether to impose DP (at Step 1 Eligibility phase, jury must find at least one AF BRD; at Step 2 Recommendation phase jury can consider whatever AFs and MFs it wants) (3) requires consideration of all MFs (none are statutorily listed) (4) automatic SCT proportionality review (5) DP not limited to murder.

Sunstein & Vermeule: Is CP Morally Required? overview

Overview: (1) If we assume DP deters homicides (based on DRS study that says 18 lives), then we are morally obligated to keep it bc omissions (i.e. inaction) by the state are no different from acts by the state. (2) setting aside assumption of deterrence, there need only be a substantial possibility of deterrence, not definitive proof, for us to act (if what you're trying to prevent is bad enough, you'll settle for less certainty).

Wiggins v. Smith (2003) OI

Overview: (1) Performance: (a) strategic choices made after limited investigation only reasonable if decision to limit or stop the investigation itself was reasonable (b) uses local standards for prevailing practice and effectively incorporates ABA as checklist; (2) Prejudice: 1 juror standard (for capital cases, prejudice analysis is different bc only need to move one juror from death to life). Issue: Sexual killing of elderly woman. Completely circumstantial trial; really strong residual doubt. Facts about D. (1) Sexually abused as a child (2) had lived with a abusive, alcoholic, absentee mom (3) later was physically tormented and raped repeatedly as was moved around from foster care to foster care (4) was homeless for a while (5) had diminished mental capacities. What counsel did/didn't do. (1) Only looked at DSS + prosecutor's pre-sentence report. Didn't investigate further—didn't create social history report (info from everything in D's past, including interviews with friends + families + teachers, etc) even though state prepared funds for + was consistent practice in MD. (2) Told jury would hear about D's character but it never happened, other than to say had no prior convictions. a. NOTE: Atty wanted to bifurcate sentencing to first exclusively emphasize residual doubt and then emphasize childhood sex abuse (bulk of possible ME was about horrible sexual abuse, so could defeat residual doubt given nature of crime). Then they weren't allowed to bifurcate, so didn't do much mitigation, just emphasized residual doubt (they only found out no bifurcation the day before, so probably didn't have much prepared).

Guest Lecture

Overview: (1) Quality of trial lawyering *really* matters in putting on a mitigation case + there's a huge variance between the quality somewhere like AL and somewhere like CO (2) using certain strategic tactics during jury selection is crucial to having a jury that will be receptive to your mitigation story. 1. She looked at mitigation through the lens of two clients: a. Brandon Washington (AL)—killed someone while robbing a store, death sentence overturned on appeal due to improper VIE; prosecution didn't try for death the second time. b. James Holmes (CO)— killed 12 movie theater attendees + injured 70 (one of the worst shootings in U.S. history). Got LWOP because of mental illness. Did not receive DP. 2. Massive difference in evidence brought at penalty phase: a. Washington. 3 witnesses + no exhibits. Took 2 hours, which is not rare in AL. Basically had no mitigation theory. Horrible trial lawyer, which but again fairly standard in AL. b. Holmes. 39 witnesses + many exhibits. Took two weeks, which is standard in CO. Mitigation theory: good character + mental illness. Excellent trial lawyer (it was Kristen Nelson). 3. Quality of lawyering really matters. This helps explains why AL has 4.8M population + 183 on DR; CO has 5.5M but only 3 on DR. You need a good lawyer to effectively convey a mitigation story, no matter how good the story itself is. 4. She uses specific tactics during jury selection, which she calls the most important part of capital cases. For reference, Holmes's jury selection took 3 months. a. Picks jurors based solely on DP views as reflected from their words in voire dire. Not based on other racial/gender/etc stereotypes. DP views most important because guilt will likely not be in doubt. b. "Strips" jurors to get meaningful answers. Making sure jurors know the law about when DP comes into play. Give them some facts, see their reaction, what do they consider to be mitigating? c. Educates jurors about concept of mitigation. Tells them it's just about whether moral culpability is reduced; it's not a justification or excuse for their actions. It's not a factual decision like innocence vs. guilt; it's a moral decision about who lives and who dies. d. Educates that DP never required. A lot of jurors later report thinking it was mandated. e. Tells jurors that their mitigation decisions should and will be respected by other jurors and the judge.

McCleskey v. Kemp (1987) OI

Overview: (a) Even assuming validity of Baldus study, D's EP claim will fail unless he can show the existence of intentional discrimination that had an effect in his case; statistics are insufficient (b) regardless of whether jurors have given mercy to other Ds, an 8A claim will fail if jurors used constitutionally mandated discretion to give D individualized consideration + his punishment isn't disproportionate. Issue D argues on habeas that his DP sentence is unconstitutional under 8A +14A EPC bc racial considerations entered into his sentencing determination.Provides Baldus study. Most sophisticated study of race discrimination in capital sentencing ever done (multi-regression, accounts for hundreds of other factors). Found that race of V matters great deal (as much as a prior conviction for murder) and that race of D isn't as important.

Penry v. Lynaugh (1989)

Overview: 8A individuality requires that statute must give full weight to ME in order to let sentencer come to a "reasoned moral response" about whether D should get DP or not. This means statute can't (a) prevent ME from being fully considered or (b) cause ME to act as a double-edged sword. Issue 1. D's ME were intellectual disability (ID) + abusive childhood. 2. Even though the ME might reduce D's culpability under (b)(i) Deliberateness, it also might make him seem more dangerous under (b)(ii) Future Danger. Is this OK under W/L/E? 3. Does TX's Special Issues scheme allow sufficient latitude to fully consider D's ME? Is the fact that it might be relevant to the (b)(i) Deliberateness question enough?

Zant v. Stephens (1982) ("Stephens") issues and overview

Overview: An AF only needs to genuinely narrow the class of people eligible for DP—no need to guide the jury beyond that. Therefore, threshold (aka "non-weighing") statutes are OK. "A capital sentencing scheme must genuinely narrow the class of persons eligible for the DP and must reasonably justify the imposition of a more severe sentence on the D compared to others found guilty of murder." Issues 1. Is GA's DP statute constitutional? a. Statute: Step 1 Eligibility—find AF BRD to make death eligible. Step 2 Sentencing—decide whether should receive DP using unfettered discretion. 2. Does fact that one of AFs found in D's case later found to be unconstitutional invalidate his DP? a. NOTE: Jury finds 2 factors, one later found to be unconstitutional ("substantial history of ... serious assaultive criminal convictions.")

Coleman v. Thompson (1991) OI

Overview: Bc Ds don't have constitutional right to counsel in state habeas proceedings, there cannot be a Strickland violation in state habeas proceedings. Thus, this can't be a cause for a procedural default, bc that requires some external factor that impeded D, and errors of counsel you're not entitled to isn't an external factor. Issue: D gets DP. Exhausts direct appeals, brings state habeas claim. Is denied on the merits in state habeas court and misses the deadline to appeal to state habeas appeals court by three days. Brings federal habeas claim, including IAC claim for his representation in state habeas

McGautha v. California (1971): overview and issues

Overview: Both unitary trials and standardless discretion are constitutionally permissible. Issues 1. Do unitary trials violate 14A due process or 5A right against self-incrimination? Hard to beg for mercy/show remorse/argue for reduced culpability while also maintaining innocence. NOTE: this issue was argued in companion case, Crampton (1971)). 2. Standardless discretion: does the lack of sentencing standards violate 14A due process bc of "absolute discretion"? NOTE: Today we're used to hearing about AFs and MFs, but at the time of McGautha, judge was sentencer except for CP, and jury was given no standard—bird fully in their hands.

Furman v. Georgia (1972): overview, issue, holdign

Overview: DP as currently administered violates 8A C+U bc unguided jury discretion creates impermissible arbitrariness. Issue: Is DP in violation of C+U b/c of arbitrariness? Majority (Per Curiam) 1. Court comes out 5-4 against DP *as applied* a. Douglas, White, Stewart: DP unconstitutional *as applied* bc it creates impermissible arbitrariness. (NOTE: White + Stewart flipped from McGautha (1971)) b. Brennan + Marshall: DP *per se* unconstitutional c. Burger, Blackmun, Powell, Rehnquist: DP constitutional. (NOTE: these 4 are all Nixon appointees)

Atkins v. Virginia (2002) OI

Overview: DP disproportionate for ID (thus overruling that part of Penry) bc of (1) "emerging" public consensus against it + (2) doesn't serve deterrence or retributive purposes + (3) difficulties in presenting ME and expressing remorse creates danger of convicting innocents. Issue 1. D has IQ of 59 (mental age of child). Had co-D of normal intelligence, they both said other one did it. Jury credited co-D and sentenced D to DP. 2. Is DP disproportionate for someone with ID?

Coker v. Georgia (1977)

Overview: DP for rape of adult is C+U disproportionate. Issue 1. Is DP for rape of an adult woman C+U disproportionate? 2. NOTE: Race is in background of this decision, even though Court doesn't talk about it (Coker was white-on-white rape; they deliberately picked a case that wouldn't require discussing race).

Enmund v. California (1982) OI

Overview: DP is C+U for D who neither took a life, attempted to take a life, or intended/anticipated taking a life, and wasn't present Issue 1. D drives getaway car to robbery where people are killed; he's sitting in car the whole time. Convicted under FM and received DP. Is this C+U disproportionate? a. NOTE: Facts reminiscent of Lockett—robbery gone wrong.

Tison v. Arizona (1987) OI

Overview: DP proportionate for non-triggerman with no intent if major involvement + reckless indifference to human life. Issue 1. Two brothers help their dad and his cellmate escape from prison by showing up with a cooler full of guns, and then later the dad killed a family of 4 while the brothers were getting very close by. Brothers ended up in a shootout w/cops and shot at them, would've been willing to kill if necessary. 2. Brothers get DP under FM statute, and bring Enmund claim that their DP is 8A disproportionate. 3. AZ SCT ruled distinguished Enmund by saying here there was "intent to kill" here bc there was foreseeability of death. Is that enough to establish intent?

Lockhart v. McCree (1986) OI

Overview: Death-qualified jurors are OK at guilt phase even if biased toward conviction; it's not a violation of the fair X-section requirement (which doesn't apply to petit jury anyway) under 6A Impartiality doctrine requirements Issue: Witherspoon left open whether death-qualification (excluding jurors whose opposition to DP impairs performance of duties) improperly biases jury at conviction, denying claim bc the statistical evidence presented was "tentative and fragmentary." Now there are new studies

Fay v. Noia (1963) OI

Overview: Federal habeas is broader than direct appeal, so a FedCourt can have Jx whenever there is an allegation of a constitutional violation. Thus, a federal district court can hear the claim even if it is barred procedurally by state court rules, though the judge has discretion to deny if prisoner knowingly and deliberately waived their rights (Overruled in Sykes). Issue: D received LWOP and decided not to directly appeal his claim for forced confession bc afraid of getting DP from sentencing judge if he won and his case was sent back for retrial (judge told him at sentencing that almost gave DP). His co-Ds, however, appealed + won. D filed for habeas in state courts (C2). They refuse, arguing that his failure to appeal constitutes IASG and they cannot reach merits of his claim—i.e., that he defaulted the claim). D then files for federal habeas (C3). Is federal habeas available? District Court said (1) no, you didn't exhaust your state remedies (by failing to direct appeal in C1); (2) no bc there are IASG. NOTE: The IASG rule prevents FedCourts (including SCOTUS on direct appeal) from ruling on issue if it wouldn't affect the outcome of a state ruling. This is bc FedCourts not supposed to issue advisory opinions.

Proffitt v. Florida (1976)

Overview: Gregg plurality of Stewart, Stevens, and Powell upheld new post-Furman FL DP statute even though jury only served advisory role (NOTE: overturned by Hurst (2016)). Plurality (Stewart, Stevens, Powell) 1. Jury sentencing not constitutionally required. Judge sentencing would probably ensure greater consistency anyway—judges talk to each other, deal with many cases, etc.

Martinez v. Ryan (2012) OI

Overview: IAC claim at initial-review collateral proceedings (C2R1) may establish cause for prisoner's procedural default for "substantial" claims of IAC at trial (C1R1). At C3 must show that either C2R1 lawyer was defective under Strickland in defaulting underlying C1R1 IAC claim OR did not receive an atty from the state. (NOTE: Theoretically only discusses IAC claims, but could apply to other claims that can only be raised on collateral review). Issue: Martinez's C2 attorney defaulted his C1 IAC claim on what was functionally his first right of appeal (AZ only lets you raise C1 IAC claim in state habeas). Can this be Cause?

Wainwright v. Sykes (1977) OI

Overview: If procedural default bars prisoner's claim in state court, FedCourts should deny prisoner's habeas petition, absent showing of cause for the default (ordinary negligence isn't cause) and actual prejudice resulting from alleged constitutional violation. (NOTE: Still good law). Issue: 1. D failed to raise at trial claim that he didn't understand his Miranda warnings. Wants to raise it for the first time at federal habeas. 2. Is Noia still right rule for state procedural defaults?

Stone v. Powell (1976) OI

Overview: If state has provided fair and full opportunity for litigation of 4A claim (unlawful search and seizure) in state court, a state prisoner may not be granted federal habeas relief on ground that evidence introduced at TC was obtained in violation of 4A. Issue: Can D bring a 4A claim that evidence obtained by an unconstitutional search or seizure was introduced at trial, when he has previously had a full & fair litigation of the claim in state court?

Morgan v. Illinois (1992) OI

Overview: Juror can be struck for-cause if she says would automatically vote for DP in every case (reverse-Witherspoon). Issue D counsel asks TC judge to allow him to ask jurors whether if they found D guilty of crime, would they automatically impose DP regardless of circumstances? TC judge responds that he already asked this by asking if they were able to be fair and impartial and follow the judge's instructions. Can sentencing judge refuse to ask, if prompted, whether potential juror would impose DP automatically upon conviction?

Miller v. Alabama (2010)

Overview: Mandatory JLWOP disproportionate for homicide. 1. Uses T1, but in a new way: says JLWOP = DP for juvenile; it's the harshest penalty so then juveniles have same rights as adults do for DP, thus you need individualized sentencing. Majority (Kagan) 1. Brought together Pillar III: 8A proportionality (Coker, Atkins, Roper, Graham, etc.) and Pillar II: individualized sentencing requirement (W/L/E). Graham (2010) compared JLWOP to DP (unique, final, etc.) bc it's the harshest punishment for juveniles, and this means individualized sentencing requirements should apply. a. NOTE: Reiterated Roper & Graham diminished culpability point + children's "heightened capacity for change" to suggest that even non-mandatory JLWOP may not be appropriate (no penological reasons), but stops just short bc issue not before Court.

Payne v. Tennessee (1991)

Overview: No 8A bar to VIE. States are allowed, but not required, to offer VIE that give a "glimpse into the life the D has chosen to extinguish" or that "demonstrate the loss to the V's family and to society which has resulted," and this VIE is relevant in assessing D's moral culpability. Issue 1. During sentencing phase, state tried to introduce evidence from grandmother/mother of the Vs about how much the family has been affected. 2. Is there an 8A bar to VIE?

Kennedy v. Louisiana (2008) OI

Overview: No DP for interpersonal non-homicide, including no DP for rape of child. 1. T1S1: adds that pending legislation doesn't count 2. T1S2: adds (1) bc tension b/w Pillars I + II, not preferable to significantly expand the number of death eligible (2) special risk of wrongful executions bc children can be easily led (3) worried about disincentivizing reporting. Issue 1. Can you impose DP on child rapists?

Teague v. Lane (1989)

Overview: No new rules can be created through federal habeas (threshold question) (2) new rules apply retroactively on direct review, but only on collateral review if (a) individual conduct placed beyond power of law (b) watershed rule of CrimPro. · NOTE: Gov/prosecution still gets benefit of new law on collateral review (rationale for Teague is state interest; so makes sense that state governments can get benefit of new laws if they want) Issue: In federal habeas wanted SCOTUS to declare unconstitutional the absence of a fair X-section on jury venire and apply it retroactively O'Connor plurality: 1. A case announces a new rule when rule isn't dictated by precedent. Follows reasoning of prior cases (old rule) or just follows general overarching principles (new rule). 2. A new rule applies retroactively to all cases, state or federal, pending on direct review. 3. New rules don't apply on collateral review/after D's conviction becomes final, and no new rules can be created through federal habeas. D's conviction becomes final when SCOTUS rules against D or denies cert on direct review. But there are two exceptions: If rule places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe /to apply DP to. If new rule would be a watershed rule of CrimPro that alters our understanding of the bedrock procedural elements that must be found to vitiate the fairness of a particular conviction (NOTE: this is a null set; has never been met. Probably must be on level of Gideon v. Wainwright (right to counsel)). 4. NOTE: Opinion motivated by view of federal habeas as a form of deterrence—make sure the state courts get it right at the time, but you don't achieve this via retroactivity (huge comity & friction concerns here) bc that rule didn't exist at the time they rule

Witherspoon v. Illinois (1968) OI

Overview: Potential jurors can be excused for-cause only if they make it unmistakably clear that they would automatically vote against imposition of DP or that their attitude towards DP would prevent them from being impartial as to D's guilt. Issue: IL had statute that allowed judge to strike for cause any juror with conscientious scruples against DP. Half of D's venire was dismissed b/c of this statute. Constitutional?

Withrow v. Williams (1993)

Overview: SCOTUS declined to extend Powell's rule to 5A Miranda claims. Whereas 4A exclusionary rule blocks evidence that tends to show guilt, in 5A involuntary testimony cases, suspect is more likely, out of confusion or fear, to give false statements about his guilt Issue: Does federal habeas Jx extend to claims that D's conviction rests on statements obtained in violation of 5A Miranda rights? Souter majority: Miranda claims, though prophylactic, are not like 4A claims.Goes to innocence/truth-seeking. Miranda ensures reliability of interrogations, and thus it goes to innocence in context of confessions. If ppl don't know their rights, their confessions might be coerced and unreliable. The exclusionary rule had no similar reliability concern—that evidence is usually probative. Miranda safeguards is a fundamental trial right (5A self-incrimination). Whereas 4A confers no trial right. Harm can be prevented. (a) For searches, harm happens at the search—you can't prevent the harm of privacy violations; you can only remedy it at trial (b) here, if the confession isn't allowed in, the harm never happens. i. NOTE: this is unpersuasive—like 4A, Miranda clearly aims at governing out-of-court behavior. Eliminating Miranda claims from habeas won't save any judicial resources. Ds will just bring due process claims if barred from Miranda claims. NOTE: In later cases, Court goes on to also decline to extend Powell for Batson, Jackson, and "IAC failure to bring 4A claim" cases.

Wainwright v. Writ (1985) OI

Overview: Softens Witherspoon standard; jurors can be challenged for-cause if views on DP would prevent or substantially impair performance of their duties as a juror in accordance with the instructions and their oath

Strickland v. Washington (1984) OI

Overview: Standard for IAC = whether counsel's conduct so undermined functioning of adversarial process that trial cannot be relied on to have produced just result. D must show: (1) Counsel's performance was constitutionally deficient (based on objective standard of reasonableness under prevailing professional norms) (2) Counsel's constitutionally deficient performance caused prejudice to D (reasonable probability that, but for counsel's conduct, the outcome of the proceeding would have been different). Issue: Facts about D. (1) Not a particularly troubled childhood (2) was under financial pressure. What counsel did: Just says D's a good kid + he's sorry + has no past convictions (did not pursue ME bc decides to play to judge's reputation as liking people who own up to their crimes). NOTE: Counsel admitted feeling hopeless about case bc D wasn't listening to him (had confessed to the murders + waived right to advisory jury). Stunning what he didn't do: (1) No psych evaluation (2) didn't dig around for friends + family (aside from calling mom, who he never meets w/ even though mothers are always very humanizing) (3) waived the presentence report. Post-conviction evidence: (1) Psych + medical reports saying D was distressed and chronically frustrated about his economic condition (NOTE: though his own experts say no "extreme emotional or mental disturbance" which was a statutory MF, and usually you can get your experts to say anything) (2) a bunch of character witnesses. D brings IAC claim on Habeas.

Jurek v. Texas (1976)

Overview: Texas's pre-91 DP statute upheld bc Texas appellate court allowed D to bring in his ME under (b)(ii) Future Danger Issue: Does Texas Special Issues scheme unconstitutionally restrict consideration of particularized ME in violation of Woodson's 8A individualization requirement? Plurality (Stevens + Stewart, Powell) 1. Statute is constitutional since the Special Issues scheme is interpreted broadly to allow jury to consider D's ME in part (b)(ii). Special Issues scheme allows for consideration of ME as required by Woodson, since the TX Court of Criminal Appeals indicated that it interprets (b)(ii) Future Danger question as allowing a D to bring whatever ME it wants to the jury's attention. 2. NOTE: Five members of the Court believed that Jurek's holding did not preclude a claim where jury was unable to fully consider the particular ME that was introduced.

Wright v. West (1992)

Overview: Thomas wants more deference towards state courts. Habeas only supposed to deal with "extreme malfunction," and should not function as a second appellate review. Expanding the scope of habeas has huge costs and undermines state interests in finality and saving resources. O'Connor notes how Brown rejected a more deferential standard of review for questions of law and mixed questions. Thomas opinion: 1. Recent decisions call into question whether federal habeas review of questions of law and mixed questions should be reviewed de novo. (a) Teague v. Lane created functional deference to state courts; "not dictated by precedent" means they have a lot of latitude when deciding whether SCOTUS has created a new law; (b) in other decisions SCOTUS has emphasized that habeas isn't a substitute for direct appeal, thus it makes sense that different standards of review should apply for questions of law and mixed questions. 2. Why the writ should be deferential to states. (a) comity/respect for state judges (it's disrespectful for district courts to overrule state SCT) (b) it's a burden on FedCourts to have to relitigate issues already resolved by state courts (c) freeing criminals on habeas review hurts law enforcement. 3. NOTE: O'Connor has the better argument here (and her opinion is the de facto majority), but Thomas's view is the one that gets codified in AEDPA. O'Connor opinion: 1. Thomas has misinterpreted both the history of habeas and court precedent. (a) Recent precedent makes clear that standard of review for mixed questions and legal questions is de novo (b) Teague v. Lane didn't create a new standard of review; all it did was talk about retroactivity (c) Congress on 13 occasions considered adopting a more deferential standard of review and has failed to do so—this is proof that the standard of review isn't deferential.

Tuilapea v. California (1994)

Overview: Threshold statutes with vague Step 2 selection factors are OK. There are two aspects to capital decision-making: eligibility and selection, each with different requirements: 1. To be eligible, D must be convicted of crime for which DP is proportional punishment + there must be at least one AF + and AFs must be narrow and specific. Narrowing for eligibility can happen at guilt or penalty phase. 2. Selection should focus on making individualized determination of D's character and circumstances of the crime. They should be expansive to allow juries to consider all ME, and they can be vague. Issue 1. California has odd CP statute—is it unconstitutionally vague? a. Eligibility Phase: D must be guilty of 1st degree murder + special circumstance from list (these special circumstances look a lot like the AFs in GA + FL). b. Sentencing Phase: Jury instructed to consider presence or lack of presence of a number of vague, open-ended factors—like "circumstances of the crime," "age," and "presence/absence of the use of force by D." These are not yes or no questions + no guidance as to whether these factors are aggravating or mitigating.

Gross & Mauro, "Patterns of Death: An Analysis of Racial Disparities in Capital Sentencing and Homicide Victimizing," Stanford Law Review (1984)

Overview: When the race of the V is at issue, jurors are less likely to be aware of their biases since they aren't judging the V—one of the factors that will affect their reaction is how much they can relate to the V 1. Concludes that there has been racial discrimination in the imposition of the DP under post-Furman statutes in each of the 8 states examined. 2. Key question is the cause of the discrimination. Gross and Mauro focus on the jury: Their hypothesis is that juries discriminate unconsciously: (I) when jurors are judging D, they are more likely to be aware of the risk of prejudice. The act of judging will make that risk of prejudice clear (II) However, when the race of the V is at issue, jurors are less likely to be aware of their biases since they aren't judging the V—one of the factors that will affect their reaction is how much they can relate to the V. Studies show that people relate better with people of the same race (even outside the criminal law context).

Simmons v. South Carolina (1994)

Overview: Where D's Future Dangerousness is at issue and state law prohibits D's release on parole, DPC requires that D counsel be allowed to inform jury that D is parole eligible. Issue 1. Prosecutor leans hard on D's Future Dangerousness as a reason to impose DP. 2. TC refused to instruct jury that D was ineligible for parole if he got LWOP, and forbade D counsel from asking about parole at voir dire or mentioning it during trial (LWOP was still new, unlikely jury would have known about it). 3. Jury sent note to judge asking if D would ever get parole. Judge said that question was irrelevant, and the jury imposed DP.

Williams v. Taylor (2000) OI

Overview: § 2254(d)(1) isn't merely a codification of Teague. States now get deference on facts, law, and mixed questions. Issue: Debate over whether the new 2254(d)(1) establishes a more deferential standard of review (than previous de novo on both questions of law and mixed questions from Brown v. Allen) · Text of new §2254(d)(1). Habeas relief cannot be granted with respect to a claim that was "adjudicated on the merits in State court proceedings unless the adjudication of the claim—(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."

Van Hook Per Curium and Alito Concurrenc e

Per Curium: Court retreats from reliance on ABA guidelines in Wiggins. Professional guidelines can only be useful as guides to extent that describe reasonable professional norms prevailing when representation took place. Counsel was effective. (a) Didn't wait until last minute to do investigation (as D claimed) (b) interviewed lots of people (lay and expert) in advance of sentencing hearing (c) presented a lot of ME (bad childhood, drinking at age 2, witnessing sexual abuse, impaired by alcohol and drugs) (d) was no need to interview distant relatives like uncles and aunt—there comes a point where evidence can be expected to be cumulative and distract from other important duties. No prejudice. (a) Witnesses not interviewed wouldn't have added anything new besides minor details (NOTE: "minor" details were that mother was committed, father hit him, and father tried to kill mother) (b) AFs would have outweighed this marginal ME. Alito concurrence: ABA does not have special relevance in determining whether counsel's performance meets 6A Strickland standard. They're merely private organization that's not representative of the Bar.

Strickland Marshall dissent

Performance standard of "reasonably effective assistance" is too vague to be helpful. Provides no guidance to lower courts. In fact, the deferential language actually discourages them from creating any standards. What is "reasonable assistance"? Will it vary by region? Is it the reasonable appointed attorney? Why not have a checklist—there are surely some minimum, uniform requirements the Court can specify. Mentions: much of the work involved in preparing for trial, applying for bail, conferring with one's client, making timely objections to significant, arguably erroneous rulings of the TC judge, and filing a notice of appeal if there are colorable grounds. i. Steiker: this is a really good point. We don't need a prejudice standard, and the majority's prejudice standard is bad. (1) If you fail performance, you should get a retrial bc DID (or, at the least, majority standard should be reduced to "significant chance.") (2) the majority's prejudice standard is problematic: practical objection: test is counterfactual, how can you tell from a cold record? Normative objection: majority assumes point of effective counsel is accuracy (no innocents sentenced/executed) but it's really about fundamental fairness/having a legitimate process no matter how guilty D is. We shouldn't be so deferential. The importance to the process of counsel's efforts + the severity and irrevocability of DP = the standards for "effective assistance" should be applied especially stringently.

EFFECTIVE COUNSEL Doctrine 1

Performance/Deficiency:Standard: "objectively unreasonable" under "prevailing professional norms" (Strickland), which are informed by ABA and local guidelines at the time of representation (Wiggins) Counsel cannot be challenged on (safe harbors)... (Strickland) i. Strategic decisions made after a reasonable/full investigation (including decision to stop investigating) 1. At some point, if new evidence likely to be cumulative with what already found, OK to not pursue it (Van Hook) ii. Reasonable decisions made based on D's conversations w/ counsel (see Burger; Porter) Reasonable Adherence to prevail professional norms: i. In 1987, PPNs were such that lawyer didn't have to put on any ME (Burger). ii. In 2000, thorough investigation of D's background was necessary (Williams v. Taylor) iii. In 2003, a "complete investigation" is required. PPNs are informed by ABA and local standards. Not preparing social history report given funds for it and it being in ABA standards was deficiency (Wiggins v. Smith). iv. In 2005, not (i) conducting thorough pretrial investigation and not (ii) rebutting prosecution's case for death was deficient (Rompilla) v. In 2009, SCOTUS specified that no deficiency unless you violated PPNs established at the time of trial (Van Hook) vi. In 2009, meeting with D only once, failing to do a preliminary investigation, and ignoring pertinent avenues of investigation of which counsel should have been aware was deficient (Porter).

Federal Habeas: State Procedural Default

Petitioner must establish cause and prejudice (Wainwright v. Sykes) ORCause: must be external to D (IAC, Brady) i. Counsel error that isn't IAC is not external to D, bc agency theory (Wainwright). ii. No IAC if counsel is not constitutionally required (Coleman) but iii. If state habeas is D's first chance (or first functional chance, Trevino) to bring IAC claim, and she does so with an ineffective lawyer, then that deficiency counts as cause and prejudice (Martinez; Trevino). Prejudice: same standard as IAC. There must be a fundamental miscarriage of justice.

Gregg: plurality

Plurality (Stewart ("lightning strike" from Furman) + Powell (Furman dissenter) + Stevens (new)) 1) DP not per se cruel & unusual a. Notably does not consider what cruel & unusual means b. 8A Analysis i. Legislatures: 35 states enacted statutes post-Furman ii. JURIES: keep returning DP verdicts iii. HUMAN DIGNITY: Court says to not offend human dignity, must have penological justification—looks to retribution and deterrence and concludes DP performs retributive function even if deterrence is uncertain, therefore does not offend human dignity iv. PROPORTIONATE: concludes DP is not disproportionate for murder, a life for a life v. Only case that upholds the DP per se under 8A 2) GA statute is OK, not cruel or unusual a. Approves the new GA law as constitutional, though doesn't specify what facets of the GA law are the ones required to make a DP statute constitutional. i. Court likes: 1. Bifurcation - "a bifurcated system is more likely to ensure elimination of the constitutional deficiencies identified in Furman" (we don't actually know if no bifurcation if OK, b/c Court has never had to address the issue since it came up in McGautha) 2. Aggravating factors 3. Direct review 4. Juror can vote mercy even w/o mitigating factor 5. Proportionality review ii. Decision notably includes language stating approvingly that GA statute focuses "jury's attention on the particularized nature of the crime and the particularized characteristics of the individual defendant." b. It's okay that the prosecutor has discretion, or that the trial judge can give a lower sentence -- "Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution"

Woodson: Stewart plurality

Plurality (Stewart + Powell, Stevens) 1. Mandatory DP unconstitutional under 8A for 3 reasons: a. Violates ESD. (1) Juries: historically, have often rejected mandatory DP by nullifying at guilt phase. (2) Legislatures: in response to jury nullification problem, legislatures began to authorize discretionary jury sentencing; mandatory DP had been completely renounced by time of Furman (1972)—post Furman, 10 states enacted mandatory DP, but this doesn't express acceptance of mandatory DP; rather just doing what they thought necessary to preserve DP. b. Doesn't cure Furman arbitrariness bc danger of jury nullification when they don't want to impose DP. c. 8A requires individual review bc of "respect for humanity." Mandatory sentences OK under 8A for normal crimes, but DID in its finality and irrevocability—so 8A requires sentencer consider D's character, D's background, and circumstances of the crime. i. "Death, in its finality, differs more from life imprisonment than a 100-yr prison term differs from one of only a year or two. Bc of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case" ii. NOTE: this is first explicit "DID" case. iii. "It reads all persons convicted of a designated offense not as uniquely individual human beings but as members of a faceless, undifferentiated mass to be subjected to the blind inflict of the penalty of death"

Walton v. Arizona (1990)

Scalia concurrence: 1. W/L/E are in fundamental tension with Furman. Furman says must channel, limit, and guide sentencer's discretion to impose DP (NOTE: here is he rejecting "narrowing" idea—i.e. that Furman is about narrowing the death eligible class) and W/L/E requires we respect individuality by allowing jury to consider any ME it wants. a. This means sentencer's discretion to grant death must be limited; but sentencer's discretion to grant mercy cannot be. This is illogical though—these are one and the same: granting mercy = not granting death, and granting death = not granting mercy! i. "To acknowledge that 'there perhaps is an inherent tension' between this line of cases and the line stemming from Furman is rather like saying that there was perhaps an inherent tension between the Allies and the Axis Powers in World War II. And to refer to the two lines as pursuing "twin objectives is rather like referring to the twin objectives of good and evil. They cannot be reconciled." 2. Since W/L/E contradicts Furman, must reject W/L/E, and I will thus never again vote to uphold an 8A claim that the sentencer's discretion has been unlawfully restricted. We have to reject one of them, and it would be W/L/E Pillar II since unsupported by USC: (a) mandatory DP not cruel (since we allow DP for murder) and not unusual (neither a non-traditional punishment nor an arbitrary one) (b) whereas at least Pillar I might be supportable by saying sentence that is administered in such a small percentage of possible is "unusual."

Wainwright v. Writ (1985) Rehnquist majority

Standard to strike jurors is if juror's views would "prevent or substantially impair the performance of duties as juror." (a) Does not require that juror's bias be proven with unmistakable clarity (b) death is not different—"here, as elsewhere, the quest is for jurors who will conscientiously apply the law to the facts. That is what an 'impartial' jury consists of." Departure from Witherspoon makes sense.Witherspoon FN21 about standard for exclusion for DP juror was merely dicta. Witherspoon was far too high of a standard. This is bc jurors rarely are clear. i. Steiker: Good point. Witherspoon was pre-Furman, new standard makes sense now: (a) Jurors no longer have unlimited discretion as they did in Witherspoon—their discretion must be guided (b) thus it isn't as relevant whether juror will vote against the DP categorically, but whether their views on DP will cause them to be unable to apply sentencing statutes correctly. NOTE: ConsequencesNow you can just ask jurors if it would be hard for them to follow the law given views on DP.Very differential questions on basis of race arise from this standard. Whites generally much more supportive of DP, so prosecutors want to strike Black jurors and defense wants get rid of whites.

Garnder v. Florida (1977)

TW: (1) 14A DPC requires heightened procedural protections for DP sentencing (2) DPC doesn't allow DP on basis of info D had no opportunity to deny or explain. Issue Judge bases DP sentence (over LWOP jury recommendation) at least in part on presentence investigation (PSI) report not disclosed to either P or D counsel. D's counsel never asked for it, and judicial findings don't indicate there was anything special about confidential portion of the report.NOTE: Judges want to keep PSI hidden. It is info from employers, family, mentors, BFs and GFs, etc., so worried about reprisal against sources. But downside of confidentiality is that interviewees could make stuff up, get back at an ex they don't like, etc.

Herrera v. Collins (1993) OI

TW: (1) Standalone claims of AI based on newly discovered evidence not ground for federal habeas relief. (2) AI can be a gateway claim that gets habeas petitioners through door if they also have an independent constitutional violation (3) if there were a "truly persuasive" demonstration of AI, and no state avenue for relief (including clemency and pardon), it might be unconstitutional to execute D. Issue 1. Not a great evidence case for D—blood, confession letter in his pocket, his ID found by dead body. 2. D brings federal habeas petition arguing AI that his dead brother did it (due to new affidavits/other weak evidence) and that 8A prevents the execution of an innocent. 3. Can a bare assertion of innocence entitle D to relief in FedCourt? In other words, is it constitutional to execute someone who is innocent?

Lowenfield v. Phelps (1988) overview and issues

TW: AFs for sentencing can be the same as elements of a crime (so "double dipping" is ok). AFs simply need to narrow the class of people eligible for the DP (Court giving up on Gregg's "guided discretion" language!) and reasonably justify the imposition of a more severe sentence on D compared to others found guilty of murder. This can happen at guilt (LA & TX) or sentencing phase (GA & FL). Issue 1. LA statute has AFs that are identical to underlying element of the capital offence. Is this OK? Statute listed capital murder as specific intent + 1 of 5 factors (killing police, for money, child, rape, etc.). These factors look like AFs at sentencing + in fact sentencing duplicated many of them. a. NOTE: Prosecutor can simply say at sentencing, "Look, you already found these things."

Callins v. Collins (1994)

TW: Blackmun (has the original "Blackmun moment"): The two pillars are in tension, and 20 years after Furman, DP still fraught with arbitrariness, discrimination, and mistake. So giving up on DP; he will "no longer tinker with the machinery of death." Scalia: Pillars I + II are indeed irreconcilable, but instead of eliminating DP, we should eliminate Pillar II. Blackmun (dissenting from denial of cert) (Furman pro-DP dissenter) 1. USC requires Furman and W/L/E, but they are in tension. Fair imposition of DP requires both (a) that not arbitrary (Furman) and (b) that sentencer take into account individualized MFs (W/L/E). 2. Since the two are not reconcilable, DP is unconstitutional. 20 years after Furman, DP still fraught with arbitrariness, discrimination, and mistake. We cannot eliminate arbitrariness without eliminating individualization, and this is unacceptable. a. "From this day forward, I no longer shall tinker with the machinery of death ... the death penalty experiment has failed." b. Quotes Harlan "beyond present human ability" language from McGautha (1971). 3. Rebutting argument that the two step process (first narrow eligible class and then give discretion to select from that class) is sufficient. This framework doesn't eliminate arbitrariness at sentencing stage—the power to be lenient is also the power to discriminate, and race is too huge of a problem, no matter how much narrowing we do. 4. Also troubled that Court has made claims of constitutional error on federal habeas review extremely difficult to bring. Cites Herrera's refusal to grant evidentiary hearing for AI; "only bare majority of this Court could bring itself to state forthrightly that he execution of an actually innocent person violates 8A." 5. Furthermore, Court has abdicated its role. Cites Clemons' appellate court reweighing decision, Creech for allowing extremely vague AF, McCleskey for being inattentive to race issues. Also calls out Scalia for abandoning the 8A individuality requirement (Pillar II). Scalia (concurring with denial of cert) 1. Agrees that Furman and W/L/E are irreconcilable, but disagrees that this must lead to abolition of DP—after all, DP itself is explicitly in the text of the USC! 2. Argues that Blackmun bases his decision on "intellectual, moral and personal" perceptions and not tradition and text of the USC.

In Re Troy Davis (2009) OI

Takeaway: In a case with a "truly persuasive" showing of innocence, SCOTUS takes the case on original habeas Jx (rare) and remands back to GA federal district court for hearing to decide whether his evidence "clearly establishes his innocence" (GA district court said he did not, and he was executed). Still not clear if, under Herrera, a person could get habeas relief for an AI claim (though seems like necessary inference). Issue: 1. D convicted of shooting a young police officer and sentenced to DP. All witnesses later recant testimony except the one person who is alleged to be the real killer. Government is in uncomfortable position; many say D is innocent. 2. SCOTUS grants habeas petition; not through fed habeas but original SCOTUS habeas Jx which it rarely uses.

United States v. Quinones (2d Cir. 2002) OI

Takeaway: No fundamental right to endlessly litigate your innocence — Constitution's text allows the DP, and the DPC only protects those principles so rooted in tradition and history as to be fundamental, one of which is not avoiding risk of executing innocents Issue: 1. D claimed FDPA (federal death penalty statute) is unconstitutional; this is a categorical challenge that risk of DP is too high based on what we now know about wrongful convictions from DNA (so a different claim from one in Herrera), thus violating 5A due process. 2. District court (Rakoff) agrees; says ruling in Herrera is inapposite bc did not account for what DNA has taught us. 2nd Circuit takes up appeal.

Baze v. Rees (2008)

Takeaway: Stevens has a full Blackmun moment due to the risk of executing innocents and risk of discriminatory application, combined with irrevocability of DP Issue: About drugs used for execution; we aren't really concerned with this. But NOTE that it's another case that on its face has nothing to do with innocence. Stevens Concurrence: 1. (Has a FULL Blackmun moment) Thinks that DP is always going to be A+C based on his own judgment and experience. Stevens' main issue with DP is risk of executing innocents and its irrevocability. Risk of executing innocents. (a) Death-qualified juries + peremptory strikes deprive D of a fair X-section; jury is biased for conviction (b) risk of error greater in capital cases (greater pressure to convict in homicides; equipoise between MFs and AFs is enough) (Marsh); (c) VIE makes DP likelier (Payne). Intolerable risk of discriminatory application of DP (McCleskey). Bc DP, in addition, is irrevocable, Stevens has given up on DP. i. "In sum, just as Justice White ultimately based his conclusion in Furman on his extensive exposure to countless cases for which death is the authorized penalty, I have relied on my own experience in reaching the conclusion that the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the 8A.'" Unlike Blackmun (and Brennan/Marshall), Stevens says he will respect stare decisis and enforce the DP, though he doesn't think it is constitutional. None of the "adhering to my view..." stuff. NOTE: Notice Stevens' evolution. He's Republican appointee that moved slowly left over time. Upheld hundreds of DP cases/refusals to grant cert and upheld DP in plenary challenges. Saved DP with his vote in Gregg (1976) a year after he joined Court as part of the 3-Justice plurality. Bizarre that now he's saying at the end of his career that White in Furman was right!

Coleman v. Thompson O'Connor majority

The "cause and prejudice" rule established in Sykes applies not just to situations where D has defaulted a single claim (by failing to raise it at trial) but also when D has defaulted all his claims (by failing to file for direct appeal on time). The same reasons for upholding procedural default of a single claim are implicated: (a) channeling resolution of cases to the most appropriate forum (b) finality (c) giving state courts opportunity to correct their own errors (d) allowing state courts to enforce their procedural rules. Counsel ineffectiveness only constitutes CAUSE if counsel was ineffective under Strickland AND there was constitutional right to a lawyer, which makes the lawyer's mistake attributable to the state. D here had no right to lawyer. You have right to a lawyer (a) at trial (b) at your first appeal of right—>not at state habeas, and not at federal habeas. Here, the default happened as trying to get to C2R2. But D already had his underlying claim of IAC heard in C2R1 (dismissed on the merits.) NOTE: Court leaves open question of whether or not failure to raise a claim on collateral review (so failure would be at C2R1) that can only be raised on collateral review constitutes CAUSE—theory would be that functionally it's your first appeal of right and thus you'd have a right to a lawyer + thus mistake not attributable to you. (Resolved in Martinez).

Williams v. Taylor O'Connor majority

The new 2254(d)(1) established a more deferential standard. "Contrary to" means "flatly contradicted a precedent, or reached a different results on facts that were materially indistinguishable.""Unreasonable application" means "objectively unreasonable." "Unreasonable" difficult to define, but ultimately an "unreasonable" application is more egregious than an "incorrect" application of federal law." ("an unreasonable application of federal law is different from and incorrect application of federal law") Clearly established federal law" means Teague old rule (not departure from precedent) with caveat that it now has to be SCOTUS precedent.

EFFECTIVE COUNSEL N&B 1-5

The right to counsel is the most important constitutional right. Bc lawyers are vessel through which Ds get to exercise their rights. 2. Quality of counsel is particular problem in CP cases. (a) No incentive for the state to provide good lawyers against prosecutors (b) legal work in CP cases very time-intensive, which complicates defense work significantly (c) it costs a lot of money to try CP cases, and most of costs come at the trial phase (you have to pay experts, conduct investigation, etc). 3. Before Strickland, courts generally used malpractice standards to determine whether counsel was effective. However, led to too much variance in standards. Death is NOT different here; the Strickland standard applies to all cases. Note that prejudice is preferred prong for judges applying Strickland test. This is so they can rule no prejudice and avoid deciding on deficiency—lawyers are repeat players so there's (a) warm feeling judges have with them; you don't want to say they were deficient (b) you can't keep appointing them if you rule they were deficient.

Lockhart v. McCree Rehnquist majority

The studies are flawed, but we're going to assume they're true. NOTE: Powell pulls same move in McCleskey. Death-qualified jurors don't violate fair X-section requirement.Fair X-section not required in petit juries, to extend there would be "unworkable and unsound."But even if it did apply, still does not violate fair X-section. Essence of fair X-section is systematic exclusion of a distinctive group—"Witherspoon excludables" not a distinct group. You are not a distinctive group based simply on a belief.And even if they were a distinctive group; that's fine bc there's a proper state interest! Here, excluding non death-qualified jurors serves legitimate state interest to have one jury for both guilt and sentencing (otherwise you'd have two trials and it would be costly). 1. Steiker: but you could easily just have two juries, one sitting only at trial and one sitting for both trial + sentencing. This is not what the 6A Impartiality requirement is about. (a) Impartial jury consists of nothing more than jurors who conscientiously apply the law and find the facts. (b) USC does not require "Sisyphean task" of creating some hypothetical mix of individual viewpoints.

Bright, "Counsel for the Poor"

There have been minimal reforms to remedy this crisis.Some courts have eliminated hard limits on how much defense lawyers can be compensated, but ultimately haven't done much to remedy under compensation.There's a lack of leadership to get reforms passed. Politically difficult; no one likes criminals.If state can't provide proper resources to allow D to mount adequate defense, then shouldn't be allowed to put people to death. If there's funding deficiency, courts should view it as a state-imposed error and require reversal absent showing by the state that the error was harmless.LA SCT created a presumption of incompetence of counsel where provision of indigent defense services so lacking that Ds were not likely to receive effective representation. But could've done more: (1) setting limits on number of cases handled by indigent defense attys (2) requiring minimum number of investigators assigned to each attorney. NOTE: There's good news: prevailing practice has changed; this Bright piece is a little bit behind the times. Still, hasn't changed that much. (1) 20% of people sentenced to death in PA represented by lawyers who have been seriously disciplined (60% of them had been seriously disciplined *before* their assignment as capital defense lawyer and a substantial percentage had been disciplined more than once) (2) In TX, 84% of appellants waived right to reply brief, 27% waived right to oral argument, cert was not sought in 1/3 of cases, and 33% of cases filed a brief without citations (equivalent of waiving those arguments).

McCleskey Brennan dissen t

This is definitely 8A unconstitutional.8A does not require proof of discriminatory purpose.8A does not require proof that arbitrariness affected any particular sentence, just the risk of arbitrariness. (i) Look at all our other 8A decisions—Furman, Godfrey, Woodson—we cared about risk—struck down vague sentencing factors bc of risk, required guided discretion in Furman bc of risk... (ii) cannot consider as rational a system that features significant probability that sentencing decision influenced by impermissible considerations.Baldus study is very persuasive. (i) Demonstrates significant risk that impermissible racial considerations affected D's sentencing determination (ii) Consistent with GA's legacy of racist criminal justice systems, and SCOTUS's recognition of the risk that racial discrimination might affect criminal proceedings (cites Furman, Coker and Godfrey—the former and latter mentioned race in decision, the middle was white-on-white rape but had clear specter of race) (iii) GA has threshold statute—it provides considerable opportunity for discrimination at Step 2. DID so a higher degree of scrutiny of capital sentencing determinations is appropriate. Court's reasons for ignoring this are not persuasive. (a) Desire for discretion: "our desire for individualized moral judgments may lead us to accept some inconsistencies,"—but we have limits (Batson + Title VII) (b) existence of statutory safeguards—but clearly aren't working! (c) potential consequences—are you seriously worried about too much justice? Also, DID (more importantly, race is different) (d) slippery slope argument about "what if there's evidence that D's attractiveness influences things too?" is bullshit and ignores fact that race is huge issue in this country (d) not our judicial role? This is literally our job! And death is just so important.

Marsh Thomas majority and Scalia concurrence

Thomas majority: 1. A statute directing imposition of DP when AFs and MFs are in equipoise does not create an unconstitutional presumption in favor of death. States could've permissibly created even more of a burden had they wanted to 1. Scalia concurrence: Souter's arguments about innocence are misplaced—this case has nothing to do w/innocence! "The dissenters' proclamation of their policy agenda in the present case is especially striking bc it is nailed to the door of the wrong church" 2. (His more fundamental point) There's no evidence that we have actually executed an innocent person. Most DNA evidence has confirmed guilt. a. The most cited study, a 1987 article by Bedau and Radelet, is flawed. (i) Most of executions it considers occurred before modern constitutional protections (ii) only modern example (Roger Coleman) was flawed and illustrates how easily liberals are tricked. i. NOTE: Scalia is in fact correct here, which is why he emphasizes this point so much. b. Being acquitted of a crime doesn't prove you are actually innocent. c. Proving that there were lots of exonerees doesn't prove the system fails, it proves that the system works bc those people weren't executed. i. NOTE: his most important point; Steiker thinks this will prevent the AI movement from taking down DP.

Simmons Blackmun plurality

Where D's Future Dangerousness is at issue and state law prohibits D's release on parole, DPC requires that sentencing jury be informed that D is parole ineligible. (1) Cites Gardner: DPC does not allow execution based on info had no opportunity to rebut (2) D here prevented from rebutting evidence of Future Dangerousness through saying he'd be in prison for life (3) D cited public survey showing lack of understanding about life sentence; most thought was much less than life, not LWOP. Court "expresses no opinion...whether the result was compelled by 8A," so only a DPC requirement.

Martinez Kennedy majority

Yes, if the underlying IAC claim is "substantial." It is cause in this specific instance.But this doesn't establish a right to counsel at functional first appeal; rather it's only Cause for default. It's an equitable rule, not a constitutional rule—Court only telling states what the FedCourts will do, not telling state courts what they MUST do. i. NOTE: As Scalia points out, now that not having counsel in an initial review collateral proceeding automatically creates cause for default, states have massive incentive to provide counsel during that stage. NOTE: Holding only applies to instances where the state barred D from raising trial IAC claims on direct appeal.Court expanded this rule in Trevino: if the state scheme encourages (but doesn't mandate) you to wait until C2 to bring an IAC claim, IAC by the C2 atty can constitute cause for default.

Glossip, Breyer 3-4

a. (3)—Cruel b/c Excessive Delays i. We created these delays, and we're stuck with them because to get rid of them we have to remove procedural safeguards ii. They create two constitutional problems: 1. FIRST, delay in and of itself it cruel 2. SECOND, undermines penological rationalization for DP (deterrence + retribution) iii. Discusses Powell, who changed his opinion after he left the Court b. (4)—Unusual b/c Use Has Declined i. 30 states have formally abolished; 20 states still have but 9 have only conducted 5 elections in 8 years = only 11 states where DP is 'usual' ii. Geographic concentration also a problem 1. Looks to population concentration, 66% of Nation lives in a State that has not carried out an execution in 3 years 2. If we look at counties, 86% of the population lives with effectively no DP iii. "It is not so much the number of States that is significant, but the consistency and direction of the change." Roper 1. 7 states abolished in last decade; several states have formally stopped executing inmates 2. We told Congress to fix it in 1972. They clearly failed to fix it. It's time to call the play.

EFFECTIVE COUNSEL Doctrine 2

a. Standard: whether "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Strickland) i. Presumption of prejudice if there was no attorney representing D ii. Presumption of prejudice if there was conflict of interest iii. Presumption of prejudice if there was state interference iv. In all other cases, presumption against prejudice (which D must affirmatively rebut) 1. Reasonable probability is somewhere less than 50%, but the Court doesn't specify further b. You must presume the judge + jury acted reasonably (Strickland) i. Though you can show discrete things from trial, like formal responses of jury about what they valued, their notes, what they wanted to hear argument on, etc. BUT you're not talking about individual jurors/their traits. c. If you move one juror, that's enough to show prejudice (Wiggins) d. Must take the good with the bad (consider what other evidence would've come in) in assessing how evidence would've affected the jury (Wong) e. Ask whether the new evidence would've been merely cumulative (Wong)

8A Proportionality Test—T2 (non-categorically asking whether punishment appropriate for individual D)

i) (Threshold Question) Whether gross disproportionality between crime and sentence (has to slap you in the face) (1) Only if yes, (very rare), then consider: ii) Sentences imposed for similar offenses in same Jx, AND iii) Sentences imposed for same offense in other JXs Nobody ever wins under this test - see: (1) Rummel: life sentence for 3 bad checks is fine (2) Hutto (1982): 40 years for 9oz pot is fine (3) Ewing: CA's three strikes law is fine, though stats show it's an extreme outlier But see Solem (1983): WLOP for 7 prior nonviolent felonies is unconstitutional

Harrington v. Richter Kennedy majority

§ 2254(d)(1) deference applies. Presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. Presumption may be overcome when reason to think some other explanation for state court's decision is more likely.Punishing state courts for not issuing written decisions with less habeas deference could undercut "state practices designed to preserve the integrity of the case-law tradition." Also punishes state court for seeking to preserve resources and get through their habeas pile. The state court was not unreasonable when it applied Strickland standard.The 9th Circuit failed to apply 2254(d)(1) deference properly; just did de novo review. i. (a) Federal habeas relief precluded "so long as fair-minded jurists could disagree on the correctness of the state court's decision" (b) "evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." (c) "if this standard is difficult to meet, that is bc it was meant to be." Strickland itself sets a high bar—even under de novo review, the standard is deferential. i. Presumption that counsel's exclusion of something is tactics, not neglect. When you combine Strickland standard with the § 2254(d) standard, there's "double" deference.

FL statute

· "Jury shall deliberate and render an advisory sentence to the court" · Weigh list of aggravating factors against mitigating · Automatic review by FL SCT · Enumerated mitigating and aggravating circumstances · Vague catch-all: "Homicide committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification"

GA statute

· "Where a statutory aggravating circumstance is found and a recommendation of death is made, the court shall sentence the defendant to death" · "Where a sentence of death is not recommended by the jury, the court shall sentence the defendant to imprisonment as provided by law" · Need to find at least 1 statutory AF, then can consider anything (any AF, MF) · Then immediately goes to the GA SCT · Got inspiration from model penal code · Vauge catch-all: "outrageously or wantonly vile, horible, or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim"

Hidalgo v. Arizona (cert denial 2018)

· Hidalgo has evidence that the aggravating factors make it so that virtually every person convicted of first-degree murder are death eligible o Study found that 98% of first-degree murder defendants were eligible · Still agree that cert should be denied because there was no evidentiary hearing so the report has been largely unexamined by experts